The Right Thing

Code of Conduct

1st Quarter 2024 Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

SORA hearings

People v Acosta (Samuel), 2024 NY Slip Op 01684 (1st Dept 3/26/24) – “As the People concede, defendant was improperly assessed 20 points under factor 7 for having a professional relationship with the victim because the People failed to provide him with the requisite 10-day notice of the basis for seeking points under that category (see Correction Law § 168-n[3]; People v Worley, 40 NY3d 129, 134-135 [2023]). Nevertheless, defendant’s presumptive risk level remains the same….”

People v Lostumbo (Stanley), 2024 NY Slip Op 01639 (4th Dept 3/22/24) – Here, SORA determination vacated and new hearing ordered because of the People’s admitted failure to give defendant the requisite 10-day notice of their intent to seek the assessment of 10 additional points under risk factor 12. Defendant was also deprived of a meaningful opportunity to respond to the theory on which the court assessed points on that risk factor. Such theories, alleged without sufficient notice, deprived the defendant of a meaningful opportunity to respond and therefore deprived him of due process.

1st Dept

People v Samuel (Edward), 2024 NY Slip Op 00144 (1/11/23) – Note this appeal was from a 2017 (pre-CPL 245) conviction.

• “People’s failure to provide notice of a second witness did not warrant preclusion of the showup identification evidence (see CPL 710.30[1]). Because defendant moved to suppress both witnesses’ identifications and ‘received a full hearing on the fairness of the identification procedure, any . . . deficiency in the notice provided by the People was irrelevant’ (People v Kirkland, 89 NY2d 903, 904 [1996]; see CPL 710.30[3])”
• As for the People’s belated disclosure of the rap sheets of two of its chief witnesses, defendant “failed to show that he was prejudiced by the People’s delay, since he was given an opportunity to use the material to cross-examine the witnesses and did not seek a continuance for further investigation and preparation [citations omitted].”

People v Morales (Elliot), 2024 NY Slip Op 01681 (3/26/24)

• People did not disclose contact information for a possible defense witness from defendant’s cellphone, which had been seized by the police, before the 2015 suppression hearing. But 1st Dept rejected defendant’s claim of a Brady violation. “Even assuming that the People had suppressed the requested information, defendant has not established that the information was exculpatory in nature or that he was prejudiced by its suppression (see People v Rong He, 34 NY3d 956, 958 [2019]). At the suppression hearing, defendant sought to introduce an intoxication defense, through testimony of the potential witness, to challenge the voluntariness of statements he made to the police. The potential witness, however, was not present when defendant made those statements, and the hearing court, which heard relevant testimony from multiple witnesses and viewed video evidence, apparently determined that defendant was not so intoxicated that he was unable to understand the meaning of his statements.”

2nd Dept

People v Cox (Jermain), 2024 NY Slip Op 01557 (3/20/24) – In 2008, the 2nd Dept affirmed defendant’s murder conviction (54 AD3d 684) because, inter alia, the record supported the trial court’s conclusion, following a re-opened Wade hearing, that an eyewitness had not been shown defendant’s photo before viewing the lineup.
It now has affirmed the trial court’s summary denial of defendant’s 2020 CPL 440.10 motion to vacate the conviction for alleged Brady violations. “[C]ontrary to the defendant’s contention, the information in the [police] reports and police notes failed to support the witness’s original trial testimony that she was shown a photograph of the defendant prior to viewing the lineup. Moreover, there was considerable other evidence linking the defendant to the crime, including identification testimony from another eyewitness…Therefore, to the extent that the police reports and police notes were not disclosed, the Supreme Court properly determined, based upon the parties’ submissions, that there was no reasonable possibility that disclosure of those documents would have altered the outcome of the case [citations omitted].”

3rd Dept

People v Jenne (Thomas), 2024 NY Slip Op 00476 (2/24/24) – For discovery purposes. NYS Department of Corrections and Community Supervision “is not a ‘law enforcement’ agency, has been found to be ‘outside of the legal or practical control of local prosecutors’ and, therefore, the People cannot be deemed to be in constructive possession of that which DOCCS possesses (People v Kelly, 88 NY2d 248, 253 [1996].”

People v Williams (Colyn), 2024 NY Slip Op 00654 (2/8/24) – Applied the Bay factors to uphold validity of COCs and denial of 30.30 motion. People supplied extensive discovery even before CPL 245 took effect, and unlike the prosecutor in Bay, who erroneously advised the court that significant records in the People’s actual possession did not exist, the People here expressly acknowledged their obligation to provide a witness’s criminal history and expert’s CV once they obtained the documentation. Delay in subsequent disclosure of witness’s rap sheet was apparently due to valid concerns for witness’s safety, although the People did not move for a protective order per CPL 245.70. The absence of such an application, however, “does not vitiate the reasonableness of that concern at the time they filed the initial COC.” In the 3rd Dept’s view, “the ensuing delay in providing the belated discovery items falls within the scope of CPL 245.80 for which an appropriate sanction could have been imposed.” Dismissal pursuant to CPL 30.30 unwarranted owing to the People’s demonstrated good faith and due diligence before filing their first 2 COCs.

4th Dept

People v Jones (Chanon), 2024 NY Slip Op 00705 (2/9/24) – Mistrial properly denied. During the 2019 trial, the parties learned that a hidden camera that the police had used for surveillance of the front exterior of the house failed to record several weeks of data, including the day the police searched the house. “Given that the exculpatory value of the missing evidence is completely speculative, the court did not abuse its discretion in imposing the lesser sanction’ of a permissive adverse inference instruction [internal punctuation and citations omitted].”

People v Heverky (Joseph), 2024 NY Slip Op 00524 (2/2/24) – Conviction reversed and new trial ordered due to the trial court’s errors during jury selection [see below]. App. Div. also held that the prosecution’s failure to timely disclose three different transcripts from other court proceedings constituted a violation of its obligations under CPL 245.10, even if the transcripts were equally available to both the prosecution and the defense. People also failed to timely disclose a police report and case file notes made by a prosecutor who also testified as a witness. Although such omissions constituted a Rosario violation that was remedied, they also constituted a discovery violation. Before retrial, court should impose any remedies or sanctions it deems appropriate under CPL 245.80.

People v Rojas-Aponte (Hector), 2024 NY Slip Op 00534 (2/2/2024) – Appeal held in abeyance and matter remitted back to County Court so the People can file a response to defense motion to strike COC and dismiss per CPL 30.30. Court erred in denying defense motion on the ground that the People’s method of review of law enforcement disciplinary records by a panel of ADAs fulfilled their obligation under CPL 245.20 (1) (k) (iv). That provision requires disclosure of “[a]ll evidence and information … that tends to … impeach the credibility of a testifying prosecution witness.” The 4th Dept held that There is no statutory authority “for the use of a screening panel to decide what evidence and information should be disclosed, or to otherwise act as a substitute for the disclosure of the required material.” Trial court further erred in denying defendant’s motion on that basis before the People submitted a response. .

People v Bookman (Oliver), 2024 NY Slip Op 00537 (2/2/24) – County Court did not abuse its discretion in imposing only an adverse inference charge as a remedy pursuant to CPL 245.80 (1) (b) for the People’s failure to disclose video footage that “may have depicted the outside portion of [defendant’s] cell at the time of the incident.” Video had been deleted in the matter of course per the jail’s policy.

‘

Grand Jury

3rd Dept

People v Jenne (Thomas), 2024 NY Slip Op 00476 (2/1/24) – Defendant not entitled to dismissal of the indictment on the ground that improper and prejudicial evidence was put before the grand jury

1. Evidence regarding defendant’s prior conviction and an Order of Protection in favor of the victim were material and relevant to prove the charged offenses of Aggravated Family Offense and Criminal Contempt in the Second Degree.
2. Evidence of defendant’s incarceration was necessary background information for some of the charged offenses involved a messaging service provided to jail inmates, and prosecutor gave a limiting instruction.
3. Prosecutor also promptly delivered an appropriate, curative instruction when a witness answered a question from grand jury foreperson by including “inappropriate” facts about the prior conviction in the response. The challenged testimony therefore did not usurp the integrity of the grand jury proceeding.

People v Ferrer (Alex), 2024 NY Slip Op 00947 (2/22/24) – Defendant’s claim that indictment should be dismissed because the grand jurors were not informed of his request to have certain witnesses testify on his behalf was both unpreserved and without merit. The proposed testimony was either duplicative or not exculpatory. As a result, it was not established that had those witnesses testified, the grand jury might not have voted to indict.

People v Lewis (Maliek), 2024 NY Slip Op 01127 (2/29/24) – Defendant’s complaint about hearsay evidence before the grand jury was based on a lone question posed to his sister, and her answer did not pertain to any of the elements of the charged crimes. As there was no evidence that the prosecutor acted in bad faith or that the statement prejudiced the grand jury, the integrity of the grand jury was not impaired.

4th Dept

People v Mancuso (Steven), 2024 NY Slip Op 01408 (3/15/24) – 4th Departmnet rejected claim that integrity of the GJ was impaired in a CPW case by (1) a failure to instruct on temporary innocent possession, and/or (2) a Failure to present “exculpatory evidence.”

• “There is no requirement that the grand jury must be charged with every potential defense suggested in evidence, but, rather, the People are required to charge only those defenses that the evidence will reasonably support [internal punctuation and citations omitted].” Evidence before the grand jury here was insufficient to warrant an instruction on the defense of temporary and innocent possession of a weapon.
• Further claim that the prosecutor failed to provide the grand jury with certain exculpatory evidence not preserved, for defendant failed to move to dismiss the indictment on that ground.

Voir Dire & Juror Issues

1st Dept

People v Guity (Melvin), 2024 NY Slip Op 00363 (1/25/24) – Defendant’s Batson application properly denied because defendant did not demonstrate a prima facie case of prosecutorial discrimination. “The numerical assertion, without more, was insufficient to satisfy his initial burden [see People v Brown, 97 NY2d 500, 507-508 (2002) (other citation omitted)].”

2nd Dept

People v Nivol (Kukla), 2024 NY Slip Op 01201 (3/6/24) – ADA’s explanation that he challenged a prospective juror because a family member was convicted of a crime, similar to some of the charges for which defendant was on trial, properly found to be race neutral. Thereafter, defendant failed to satisfy her ultimate burden of demonstrating, under the third step of Batson analysis, that the explanation was a pretext for race discrimination. “While the defendant argues on appeal that pretext was shown by the prosecutor’s subsequent failure to strike similarly situated jurors, the defendant did not renew her Batson challenge on that basis and provide the People an opportunity to address the claim [citation omitted].”

People v Parker (Mark), 2024 NY Slip Op 00783 (2/14/24) – 2nd Dept. held that trial court erred in denying defendant’s Batson challenge. In response to defense counsel’s challenge to the peremptory strikes of four African-American males, the prosecutor asserted that each was an unemployed college student, living at home with family members, and lacking the requisite life experience needed to decide the issues in the case. The ADA, however, did not strike a similarly situated prospective juror who was not black. “Where a peremptory challenge is based upon a prospective juror’s employment, the concerns regarding the employment must be related to the factual circumstances of the case, and the qualifications of the juror to serve on that case. Here, the prosecutor did not relate the employment status of the four prospective jurors to the facts of the case, and no such relationship is apparent from the record. Furthermore, the record demonstrates that the articulated reasons were not applied equally to exclude other prospective jurors. Under these circumstances, the prosecutor’s explanations as to the four prospective jurors were pretextual, and the defendant is entitled to a new trial on this ground” [internal punctuation and citations omitted].

People v Key (Taisha), 2024 NY Slip Op 00197 (1/17/2024) – Trial court properly denied defense for-cause challenge to a prospective juror based on a claim of implied bias. The “juror’s impartiality was not compromised merely because she was a complainant in a pending case being prosecuted by a different prosecutor in the Kings County District Attorney’s Office (see People v Whittington, 267 AD2d 486; People v Johnson, 261 AD2d 125, 125-126). Moreover, the juror confirmed unequivocally that her experience as a complainant in the unrelated case would not affect her ability to be fair and impartial in this case [citations omitted].”

4th Dept

People v Brown (Keith), 2024 NY Slip Op 00566 (2/2/24) – County Court properly denied Batson challenge on two prospective jurors. The People gave race-neutral reasons, and defendant did not meet his ultimate burden of establishing that those reasons were pretextual. The trial court’s conclusion that the prosecutor’s reasons were not pretextual is entitled to great deference because it was in the best position to evaluate demeanor and credibility. Batson challenge issue as to a third juror not preserved because defendant failed to renew objection after the People’s explanation for the peremptory strike.

Opening

4th Dept

People v Howard (Dunkavious), 2024 NY Slip Op 00711 (2/09/24) – 4th Department upheld trial court’s refusal to dismiss the indictment on the ground that prosecutor’s opening statement was fatally deficient because it did not specifically delineate the particular offenses. A prosecutor’s opening statement “should be a capsulized version ‘of the evidence that [the prosecutor] expects to present, and the claim that [the prosecutor] will make with reference thereto, to the end that the jury, upon listening to the evidence, may better understand and appreciate its connection and bearing upon the case’ ” (People v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451 US 911 [1981]). But the trial court may not dismiss unless it appears from the statement that “the charge[s] cannot be sustained under any view of the evidence, and it may dismiss then only after the prosecutor has been given an opportunity to correct any deficiency” [citations omitted]. Lastly, “absent bad faith or undue prejudice, a trial will not be undone simply because there was some defect in the prosecutor’s opening to the jury” (Kurtz, 51 NY2d at 385.) No indication of bad faith here, and prosecutor’s opening sufficiently apprised the jury of the nature of the case.

Direct

1st Dept

People v Dyer (Shaun), 2024 NY Slip Op 00364 (1/25/24) – People’s case included autopsy reports and related documents introduced through testimony of pathologist who had not performed autopsy, thereby violating defendant’s Sixth Amendment right to confrontation. See People v Ortega, ___ NY3d ___, 2023 NY Slip Op 05956 (2023). But constitutional error was harmless in this murder case where the only issue was whether defendant’s killing was justified self-defense. “To the extent any of the challenged evidence had a bearing on that defense by establishing the injuries caused by defendant’s devastating attack, this was cumulative to other evidence of the victim’s injuries. Furthermore, even after excising the disputed evidence, the totality of the evidence refuting defendant’s justification defense, including the testimony of neighbors who heard the incident and photographs showing that the victim suffered heavy blows to the back of his head, was overwhelming.”

People v Woods (Erica), 2024 NY Slip Op 00984 (2/27/24) – Trial court’s denial of defense mistrial motion — because People introduced heroin recovered from the codefendant — was not error. People “ultimately elected not to submit the heroin-related counts to the jury, [and] nothing indicated that the People introduced the heroin in bad faith [citation omitted].” Additionally, any prejudice was minimized by the court’s curative instructions.

2nd Dept

People v Branch (Torey), 2024 NY Slip Op 01018 (2/28/24) – Defendant convicted of Burglary 1 and Abortion 1 for beating his pregnant girlfriend and causing a miscarriage. At trial, an autopsy photo of the victim’s fetus was admitted into evidence, which the 2nd Department deemed properly part of the People’s case. The photograph was “neither excessively gruesome nor introduced for the sole purpose of arousing the jurors’ passions and prejudicing the defendant” and helped illustrate the ME’s testimony and prove the material elements of abortion in the first degree.

People v Brown (Reginald), 2024 NY Slip Op 01019 (2/28/24) – People’s case properly included evidence of defendant’s gang membership because it was inextricably interwoven with the narrative of events leading up to the shooting and provided necessary background information to explain to the jury the relationship between the defendant, the witness, and the victim. Any prejudice to the defendant was outweighed by the probative value of the evidence, and the court’s limiting instructions to the jury served to alleviate any possible prejudice.

3rd Dept

People v Moore (Kyshaen), 2024 NY Slip Op 00337 (1/25/24) – At trial, the prosecutor asked the codefendant’s girlfriend (a People’s witness), “Did [defendant] ever tell you that he was present with the car in upstate New York?” She answered “No.” The prosecutor then confronted her with her contradictory grand jury testimony. This was not improper, for CPL 60.35 permits a party to impeach their own witness, who has given evidence that tends to disprove the party’s position, with a prior sworn, contradictory statement.

People v Karnes (Damien), 2024 NY Slip Op 00340 (1/25/24) – On direct examination, the prosecutor asked the victim, “What happened next?”; she replied that defendant told her that he had just gotten out of prison. The court sustained defense counsel’s objection and instructed the jury to disregard that portion of the testimony. Outside the presence of the jury, the court denied defense counsel’s request for a mistrial and told the prosecutor to instruct all witnesses, including the victim, that they should not mention anything defendant’s prior conviction. This prompt judicial action alleviated any prejudice to the defendant.

People v Christie (Tahir), 2024 NY Slip Op 00948 (2/22/24) – Victim, who was raped at about midnight, told a friend-work colleague about the sexual assault the following day, and he was permitted to testify about the victim’s statements to him. Testimony properly admitted as it fell within the parameters of the prompt outcry exception to the hearsay rule. ‘[G]iven that the incident occurred late at night…and the friend was a coworker who the victim would not see until the next day, we are satisfied that such disclosure was admissible as a prompt outcry,” made “at the first available opportunity.”

People v Wells (Elliott), 2024 NY Slip Op 01128 (2/29/24) – Testimony by mother of one of two victims of the child sex crimes at issue that defendant was “away for two years” during her relationship with him did not constitute a Molineux violation because the testimony was ambiguous and did not suggest defendant was incarcerated during that time. But second victim’s mother should not have been permitted to testify about the circumstances leading to he 2010 arrest for assaulting defendant. This error, however, did not deny defendant a fair trial. She was impeached in several respects on cross-examination, and the jury acquitted defendant of all charges relating to her child.

4th Dept

People v Lee (Corey), 2024 NY Slip Op 00718 (2/09/24) – Court properly allowed the People to question a witness and two other witnesses as to that witness’s prior consistent statements. “While it is generally improper to introduce testimony that a witness had previously made prior consistent statements, when there is no claim of either prompt outcry or recent fabrication, such testimony may be admissible when it is offered not for its truth, but for some other relevant purpose, for example, as here, to assist in explaining the investigative process and completing the narrative of events leading to the defendant’s arrest [internal punctuation and citations omitted].”

Cross-examination

3rd Dept

People v Wells (Elliott), 2024 NY Slip Op 01128 (2/29/24) – At the 2019 trial of predatory sexual conduct against a child and other offenses, the trial court ruled that if the defendant testified, the prosecutor would be permitted to inquire whether the defendant had a prior felony conviction, but without going into the nature of the crime or attendant circumstances. The 3rd Department agreed with defendant that the prior, attempted burglary conviction — 13 years earlier when he was 16 and pleaded guilty — was of “seriously diminished” probative value, but it refused to hold that the Sandoval ruling deprived him of a fair trial. Through defendant’s direct testimony, the jury learned of defendant’s age at the time of the prior offense and that it was not similar to the charges for which he was on trial. Further, the court instructed the jury that it could not consider the prior conviction as evidence of defendant’s propensity to commit the crimes charged. (It also should be noted that the jury acquitted defendant of all counts pertaining to one of the two victims.)

Re-direct/Rebuttal

3rd Dept

People v. Moore (Kyshaen), 2024 NY Slip Op 00337 (1/25/24) – On redirect examination, the trial court properly allowed the prosecution to introduce evidence of a recorded conversation between the then girlfriend of a co-defendant and the father of her child to rebut the defendant’s claim that the witness’ testimony was a recent fabrication.  Defendant claimed that the witness had received financial assistance from the prosecution in exchange for her testimony. Since the conversation  at issue pre-dated the agreement between the witness and prosecutor, it negated the suggestion of recent fabrication.

Summation

3rd Dept

People v Johnson (Isaiah), 2024 NY Slip Op 01212 (3/7/24) – In summation, the prosecutor suggested thar the defendant’s criminal conduct “occurred all the time.” The trial court gave a prompt curative instruction. Since the prosecutor’s statement was not “part of a flagrant and pervasive pattern causing substantial prejudice to the defendant” and in light of the overwhelming evidence against the defendant, the trial court did not err in denying the defense motion for a mistrial.

Conflict of Interest/Appearance of Impropriety

2nd Dept

People v Arevalo (Jesus), 2024 NY Slip Op 00776 (2/14/24)- Defendant’s CPL 440.10 motion properly denied after a hearing. Defendant argued that he was deprived of the effective assistance of counsel because, unbeknownst to him at the time, his trial attorney was facing criminal charges brought by the same District Attorney’s Office, in addition to disciplinary charges.
The Court of Appeals, however, “has refused to require automatic reversal any time the defense attorney is under investigation or being prosecuted by the same district attorney’s office that is trying his or her client (see People v Payton, 22 NY3d 1011; People v Konstantinides, 14 NY3d 1, 14). Here, trial counsel’s criminal charges and the attorney disciplinary charges were unrelated to the defendant’s case. Accordingly, to obtain relief, the defendant was required to demonstrate at the hearing that ‘the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation’…. [This] defendant failed to meet that heavy burden [citations omitted].”

Miscellaneous

People’s failure to produce a form, a list, or relevant testimony at suppression hearing meant there was “no basis on which to conclude that an inventory list or record of the search results was ever created, either during the [inventory] search or after its completion.” App. Div. court ordered suppression, vacated conviction, and dismissed the indictment. People v Cabrera (Johan), 2024 NY Slip Op 00685 (1st Dept 2/8/24).

Disciplinary & Other Proceedings/Sanctions

False CLE reporting

Matter of Joseph Henry Lilly, III 2024 NY Slip Op 00274 (1st Dept 1/23/2024) – Attorney suspended, upon agreement, for at least 2 months for falsely certifying that he had met the CLE credits required of an experienced attorney for two consecutive renewal cycles.
Former prosecutor censured as reciprocal sanction

Matter of Hanna Marie Renna, 2024 NY Slip Op 01376 (3rd Dept 3/14/24) – In January 2023, Florida’s Supreme Court suspended the attorney for 3 months, with her consent and following her admission that, in the course of representing a criminal defendant, she used an altered photo pack in her deposition of a child witness; the child’s identification of a man other than her client was the basis of her motion to suppress the evidence of the child’s out-of-court identification of the client. Florida has since reinstated her. Upon considering all the relevant circumstances, the Third Department concluded that public censure was appropriate.

AI Use

Sanction of fake cites

• Smith v. Farwell MA 2/13/2024.pdf $2000 Sanction in because of AI Hallucinated Citation Case

Non-existent case citations prompt referral to Grievance Panel

• Park v Kim, 91 F.4th 610 (2d Cir 1/26/24) – Plaintiff-appellant’s lawyer used ChatGPT “and did not read or otherwise confirm the validity of the [non-existent] decision she cited [in her reply brief]. Because this conduct falls well below the basic obligations of counsel, we refer Attorney Lee to the Court’s Grievance Panel.”

News From Other States

Illinois
Suspension recommended for Illinois attorney who falsified emails at the title insurance company where he was employed to make it appear as though the emails, concerning the disposition of claims, came from his supervisor.

New Mexico
The Supreme Court of New Mexico agreed with defendant that his second trial — following the mistrial ordered on the ground of prosecutorial misconduct — was barred by the state constitution’s double jeopardy owing to the prosecutor’s behavior at the first trial. Consequently, it reversed the convictions for child sex and endangering offenses and dismissed the indictment. State v Amador, citation not yet available (NM 2/19/24).

The trial prosecutor represented, when seeking a ruling re scope of impeachment on cross- examination, that defendant had a felony conviction; in fact, the earlier case had ended with a conditional discharge, which defendant successfully completed and was not a prior conviction under New Mexico law. In addition to emphasizing the purported, preceding conviction, the prosecutor’s summation was rife with other improprieties, such as repeatedly branding defendant as a pedophile, questioning why defendant hadn’t called his stepdaughters to testify, and advising the jury that in determining reasonable doubt, “consider whether you feel safe enough, based on what you heard today, to let this guy stay in a house with another child.”