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2024.04487 | [
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"value": "Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Tapia 2024 NY Slip Op 04487 [230 AD3d 1009] September 19, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 13, 2024 [*1] The People of the State of New York, Respondent, v Felix Tapia, Appellant. Twyla Carter, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Jacob C. Marcus of counsel), for respondent. Judgment, Supreme Court, New York County (Laura A. Ward, J., at suppression hearing; Daniel Conviser, J., at plea and sentencing), rendered May 29, 2018, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to an aggregate term of six years, affirmed. The court properly denied defendant's motion to suppress. At the suppression hearing, Officer Perez [FN1] described defendant's arrest. The hearing transcript, contrary to the dissent's reading, shows that the officers observed suspicious activity. As per Officer Perez's testimony, his attention was first drawn to defendant because he saw defendant \"wandering around\" and \"nervously looking around,\" which prompted his sergeant to direct the officers to \"keep an eye\" on defendant. Further, Officer Perez testified that, in front of the subject motel, he observed defendant speak for a few seconds with a woman Officer Perez knew had been arrested three times for narcotics possession. The two touched hands. Next, the parties separated and the woman walked for a block or so, turned around, and returned some minutes later. In her absence, defendant reached between his pants and his body. Officer Perez testified that when the woman returned, defendant \"pushed something like a small object in her hand.\" While Officer Perez later clarified that he could not see precisely what was transferred, he saw that defendant placed his hand onto her hand and she then clenched her fist and walked away. When the police approached, the woman threw to the ground the object she had hidden in her fist. Immediately afterwards, both were arrested and placed in handcuffs. In determining whether probable cause exists in a drug sale case, courts must consider factors such as: \"telltale sign[s]\" of a drug transaction (for example, an exchange of a glassine envelope for money); whether the area has a high incidence of drug trafficking; the police officer's \"experience and training\" in drug sale investigations; and \"additional evidence of furtive or evasive behavior on the part of the participants\" ( People v McRay , 51 NY2d 594, 601, 604 [1980]). Another factor to consider is an officer's knowledge of a participant's past involvement in drug crimes ( see People v Lynah , 56 AD3d 375 , 376 [1st Dept 2008], lv denied 12 NY3d 760 [2009]). Here, in a locale known for drug sales, an experienced officer witnessed a woman who was a known drug user give defendant something, saw defendant put his hands into his pants, and saw defendant touch hands with the woman. Based upon this testimony, the hearing court properly found that the officers had probable cause to arrest defendant. This peculiar interaction between defendant and the woman, under the circumstances, is not susceptible to innocent interpretation. Consequently, the hearing court properly denied defendant's motion to suppress. We find [*2] no basis to disturb its credibility determinations ( see People v Wheeler , 2 NY3d 370, 374 [2004] [noting that a suppression court's credibility determinations are entitled to \"great deference\"]). Our dissenting colleague's conclusion that there was no probable cause in this case is premised on a recitation of the facts that is not borne out by the testimony credited by the trial court. Thus, the dissent states that Officer Perez did not see the woman give defendant \"any object or any money,\" yet Officer Perez clearly testified that he observed the woman say something and \"g[i]ve something\" to defendant. Moreover, contrary to the dissent's contention, probable cause can be found despite an officer's inability to identify the object that changed hands ( see People v Graham , 211 AD2d 55, 58 [1st Dept 1995] [finding that \"(i)n a probable cause analysis, the emphasis should not be narrowly focused on a recognizable drug package or any other single factor, but on an evaluation of the totality of circumstances\"], lv denied 86 NY2d 795 [1995]; see also People v Jack , 22 AD3d 238 , 238 [1st Dept 2005] [finding probable cause where a trained and experienced officer observed the defendant, in a known drug area, transfer an unidentified object to another man by placing their cupped hands together and second man was about to hand something to the defendant but stopped upon the officer's approach], lv denied 5 NY3d 883 [2005]). The dissent relies heavily on People v Messano (41 NY3d 228 [2024]), but that case is readily distinguishable. In Messano , the officer observed the defendant exit the car he was driving and approach another car in a parking lot where he stuck his head through the other car's window several times while talking to the driver ( id. at 230). A third car arrived with a driver who was known to the officer from a prior drug arrest; a second officer who was called to assist approached the defendant and the other two men ( id. ). The second officer looked through the open driver's side window and saw a white substance and rolled dollar bill and then searched the car and recovered narcotics ( id. at 230-231). In contrast to this case, in Messano the officer neither saw the defendant give something to one of the men nor did he observe the interaction between the defendant and the known drug user. Again, here, based on the totality of the circumstances, the facts support a finding that the interaction between defendant and the woman was more likely than not a drug sale. [FN2] We agree with our dissenting colleague that an individual should not be subjected to guilt by association. However, for the reasons outlined above, we conclude that the record supports the suppression court's conclusion that, under the circumstances, the officers had probable cause to arrest defendant. Concur—Kern, J.P., Singh, Scarpulla, Higgitt, JJ. Mendez, J., dissents in a memorandum as follows: Defendant appeals from a judgment, convicting him, upon his guilty [*3] plea, of criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent prison terms of six years. On appeal, defendant argues that Supreme Court erred in denying his suppression motion after a Mapp / Dunaway hearing, because he was arrested and searched without probable cause. I agree. Therefore, I would reverse Supreme Court, grant the motion, suppress the evidence, vacate the conviction, and dismiss the indictment. On the night of August 10, 2016, Sergeant Sanchez and Officers Perez, Carrero, Figuereo, and Pimentel, members of the police anticrime unit, were working the 5:30 p.m. to 1:05 a.m. tour and assigned to surveil the Harlem River Houses in two unmarked vehicles. [FN1] At approximately 8:30 p.m., while eating on their dinner break, Sergeant Sanchez and Officers Perez and Carrero, parked their vehicle, a Nissan Altima with slightly tinted windows, near a fire hydrant approximately 25 feet from 75 Macombs Place, a multistoried motel near the Harlem River Houses, known for prostitution and drug activity. Officer Carrero was the driver, Sergeant Sanchez sat in the front passenger seat and Officer Perez in the rear seat behind the passenger. As they sat in the vehicle, they noticed defendant, Felix Tapia, standing in front of the motel talking with a woman. Although the officers did not know Mr. Tapia or the woman, or see either do anything suspicious, Sergeant Sanchez told the officers to keep an eye on him. They had observed Mr. Tapia and the woman talk for approximately 10 to 15 minutes, when they saw a second woman appear, whom Officers Perez and Carrero recognized as Karol Rivera from previous minor drug related arrests. [FN2] Officer Perez, the sole witness at the hearing, stated that no one motioned or called to Ms. Rivera, that she walked up to Mr. Tapia and the other woman, had a quick conversation with Mr. Tapia and quickly touched his hand before walking away. [FN3] Officer Perez did not see Ms. Rivera give Mr. Tapia any object or any money. Mr. Tapia continued talking to the other woman, and briefly placed his right hand between his pants and his body, midway between his waist area. He pulled his hand out without looking down at it and without appearing to hold anything in it. Officer Perez was not able to see if Mr. Tapia pulled anything out of his pants, since it was a little dark outside. All he was able to see was Mr. Tapia placing his hand midway between his waist area and pulling it back out. Ms. Rivera returned after approximately two to five minutes and approached Mr. Tapia. They touched hands, Mr. Tapia placed his hand on Ms. Rivera's hand, and she closed her hand and walked away. [FN4] Officer Perez, who at the time only had one week of narcotics training, did not see Ms. Rivera give Mr. Tapia any object or any money and did not see Mr. Tapia give Ms. Rivera any object or any drugs. The People acknowledged that all Officer Perez saw [*4] was a brief touching of hands and Ms. Rivera clenching her fist. [FN5] Officer Perez testified that Sergeant Sanchez asked Officer Carrero and him, \"Would you stop him now or later?\" They responded, \"Let's do it now.\" The three officers immediately got out of the car; Officer Perez approached Ms. Rivera and simultaneously Sergeant Sanchez and Officer Carrero approached Mr. Tapia. Officer Perez stated that he moved toward Ms. Rivera and asked her what she had in her hand while he grabbed the wrist of her closed hand. As he did so, she threw something to the ground. He was unable to see what she threw away because it was too dark. He immediately placed Ms. Rivera in handcuffs, searched her bag, and found a crack pipe. Sergeant Sanchez and Officer Carrero reached Mr. Tapia at the same time Officer Perez stopped Ms. Rivera and handcuffed and searched him before learning what, if anything, Ms. Rivera was holding in her closed hand. The officers found a bag of marijuana on his person, which Mr. Tapia told them he was about to roll and smoke. [FN6] Officers Figuereo and Pimentel were called to the scene. They arrived approximately two to five minutes later, and Officer Figuereo was asked to search the area where Officer Perez and Ms. Rivera had been standing for the object Ms. Rivera had discarded. Ms. Rivera was placed inside their vehicle to be transported to the precinct after Officer Figuereo had concluded the search. While the search for the discarded object was taking place Mr. Tapia was transported to the precinct by Officer Perez, Sergeant Sanchez and Officer Carrero. The officers and Mr. Tapia had been at the precinct approximately 10 minutes when Officer Figuereo arrived and handed Officer Perez a bag of crack cocaine, which he stated had been recovered from the ground. Mr. Tapia was searched at the precinct by Officer Perez before Officer Figuereo arrived, and recovered a bag of marijuana and money. After Officers Figuereo and Pimentel arrived, they and Officer Perez performed a strip search of Mr. Tapia and additional drugs were recovered. At the conclusion of the hearing the defense argued that there was no probable cause to arrest Mr. Tapia because at best all Officer Perez saw was a touching of hands. There was nothing about an object, drugs, or money being exchanged. The police had a hunch, jumped the gun, and then backed themselves into a sale to justify the initial approach. The prosecution argued that there was probable cause to arrest Mr. Tapia because the events occurred in a drug prone area, two of the officers knew Ms. Rivera whom they had arrested for drug possession three times, and there was some sort of quick exchange. Officer Perez saw a throwing motion and informed Officer Figuereo who had arrived shortly thereafter. Officer Figuereo was able to recover a bag of crack cocaine and \"[a]t that point there was probable cause to arrest Mr. Tapia for selling that bag of crack cocaine to Ms. Rivera.\" Therefore, the recovery of the bag [*5] of marijuana, the money, Mr. Tapia's cellphone and the strip search at the precinct were all incident to a lawful arrest. The court denied Mr. Tapia's suppression motion, finding that the People had established the police had probable cause to arrest Mr. Tapia based on their observations at the scene, coupled with their prior knowledge of Ms. Rivera's drug arrests. Accordingly, the court held that the police search of Mr. Tapia was incident to a lawful arrest and that the subsequent searches of Mr. Tapia did not violate his constitutional rights. It is well established that police may not justify a stop by subsequently acquiring suspicion resulting from the stop, that behavior which is susceptible of innocent as well as culpable interpretation will not suffice to constitute probable cause, and that \"innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand\" ( People v De Bour , 40 NY2d 210, 215-216 [1976]). In De Bour , the Court of Appeals recognized that \"any time an intrusion on the security and privacy of the individual is undertaken with intent to harass or is based upon mere whim, caprice or idle curiosity, the spirit of the Constitution has been violated and the aggrieved party may invoke the exclusionary rule or appropriate forms of civil redress\" ( id. at 217). The Court developed a graduated four-tiered test to evaluate the nature and extent of police conduct toward private citizens during street encounters, which considers whether or not the police action was: \"justified in its inception and whether or not it was reasonably related in scope [and intensity] to the circumstances which rendered its initiation permissible[,] . . . [bearing] in mind that any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence\" ( id. at 222-223 [citation omitted]). As established in De Bour , the minimal level of police intrusion is an approach to request information which is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality. It \"involves basic, nonthreatening questions regarding, for instance, identity, address or destination\" ( People v Hollman , 79 NY2d 181, 185 [1992]; see De Bour at 223). The next level is the common-law right to inquire, \"activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a [police officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure\" ( De Bour at 223). Once the officer's \"questions become extended and accusatory and the officer's inquiry focuses on the possible criminality of the person approached,\" the encounter has become a common-law inquiry ( see Hollman at 191; De Bour at 223). The third level is activated when a police officer entertains a reasonable suspicion that a particular person has committed, is committing, or is about to commit, a felony or misdemeanor. There the officer is authorized to stop and detain the person, short of arrest. \"A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed\" ( De Bour at 223; see Hollman at 184-185). \"Finally a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence\" ( De Bour at 223; see Hollman at 184-185). In People v McRay (51 NY2d 594 [1980]), the Court of Appeals held that the inference of probable cause may be drawn when \"a trained and experienced officer observes the delivery of one or more glassine envelopes—the 'hallmark' of a drug transaction—in an area notorious for narcotics\" activity, and once this minimum requirement is met, \"it is a question for [the] courts with fact-finding power . . . to find as a fact whether probable cause exists\" ( id. at 605). The court outlined certain circumstances which, when combined with the exchange of a glassine envelope, may give rise to probable cause: (1) the exchange of money; (2) furtive or evasive behavior on the part of the participants; (3) the area is rampant with narcotics activity ( see McRay at 604). Thus, in the McRay trilogy, the court found there was an inference of probable cause to arrest where experienced officers actually saw the defendants passing or receiving glassine envelopes in a high-narcotics area ( McRay at 605-606). In his concurrence in McRay , Justice Fuchsberg suggested that \"the reputation of the particular neighborhood in which illegal conduct happens to occur should not be a significant factor in finding probable cause. . . . Arrests are made of individuals, not of neighborhoods. When we single out the latter, more likely than not congested areas peopled in the main by those who are socially and economically deprived, we subject all its residents, the vast majority of whom are sure to be free of criminal taint, to an immeasurably greater risk of invasion than those who live elsewhere. The inevitable result is a measurable abridgement of the Fourth Amendment's protection against police intrusions conducted without sufficient justification . . . , giving substantial weight to the perceived crime rate of an area may constitute a self-fulfilling prophesy\" ( McRay at 606-607 [internal quotation marks omitted]). Applying these principles in People v Wilson (175 AD2d 15 [1st Dept 1991], lv denied 78 NY2d 1015 [1991]), we affirmed Supreme Court's suppression of physical evidence, finding that the officer's observation provided a basis for a minimal intrusion of approaching to request information, but did not rise to [*6] the level of warranting a forcible detention or of probable cause to arrest, when the officer who was looking for a suspect in an unrelated matter saw people walk up to the defendant and hand him money; the defendant then made either hand gestures or handed the individuals a small object, which the officer assumed was cocaine or crack because of the way the defendant handed it over. The police blocked the area with their patrol cars and approached the defendant with guns drawn, searched defendant without any inquiry, and recovered drugs and money. We held that \"a police officer's observation of an exchange between defendant and another individual of an undescribed object and United States currency is insufficient to establish probable cause to arrest defendant. Since [the officer's] observations were susceptible to innocent interpretation, his immediate arrest of defendant was excessive and not based on probable cause. . . . Although the officer knew that the area was a drug prone location, this factor alone cannot serve as the justification for untoward or excessive police behavior against those of our citizens who happen to live, work or travel in what are characterized as 'high crime areas' \" ( id. at 17-18 [some internal quotation marks and citations omitted]). In People v Holmes (81 NY2d 1056 [1993]), the Court of Appeals affirmed our decision to reverse Supreme Court and suppress the evidence. The Court held that an officer who noticed a bulge in the pocket of the defendant who was talking to a group of men near a known narcotics location may have had an objective credible reason to approach the defendant to request information, but the circumstances did not justify the significantly greater intrusion of police pursuit, because \"pursuit of an individual significantly impede[s] the person's freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed\" ( id. at 1057-1058 [internal quotation marks omitted]). In People v Moore (6 NY3d 496 [2006]), the Court suppressed evidence where the police, acting on a tip of a dispute and a man with a gun, arrived at the scene within minutes. They found no ongoing dispute but saw the defendant, who fit the description, begin to walk away on their arrival. Without any verbal inquiry, they drew their weapons and searched and arrested the defendant. The Court held that police, at most had a common-law right to inquiry based on a founded suspicion, and the forcible detention and frisk of the defendant without reasonable suspicion he had committed a crime was not justified ( see id. at 500-501). In People v Lynah (56 AD3d 375 [1st Dept 2008], lv denied 12 NY3d 760 [2009]), reasonable suspicion to detain and probable cause to arrest was found where, at a drug-prone location, the officer recognized the defendant from a recent investigation into a possible drug transaction. The defendant was holding a plastic bag and counting something. When [*7] he saw the officer, he pushed the bag up his sleeve, and when the officer approached, he secreted it in his pants, and placed it in his buttocks. Upon inquiry, the defendant told the officer that he had drugs ( id. at 376). In People v Tinnin (36 AD3d 457 [1st Dept 2007], lv denied 8 NY3d 991 [2007]), reasonable suspicion to detain and probable cause to arrest was found when a trained and experienced officer saw the defendant standing on a corner when a man approached and handed the defendant a sum of money. The defendant later touched hands with the man in a manner that suggested the furtive transfer of a small object. However, before arresting the defendant, the police detained the other man and recovered crack cocaine from his mouth ( id. at 458). In People v Graham (211 AD2d 55, 60 [1st Dept 1995] lv denied 86 NY2d 795 [1995] ) in a known drug-prone area, police officers observed the defendant make five separate transactions where he exchanged money for a small object, which he removed from a bag. After the fifth transaction the officers approached the defendant, looked inside the bag which contained what they believed to be crack cocaine and arrested the defendant ( id. at 56-57). In Graham , we found that the observation of the same exchange five times removed any doubt that the defendant was engaging in a drug transaction, but warned that the observation of one such transaction under those circumstances might leave room for doubt ( see Graham at 61). The officer must observe the telltale signs of a drug transaction, such as the transfer of an object or objects for money, in order to have reasonable suspicion to detain or probable cause to make an arrest ( see People v Jones , 90 NY2d 835, 837 [1997]; People v Jack , 22 AD3d 238 [1st Dept 2005], lv denied 5 NY3d 883 [2005]; People v O'Kane , 55 AD3d 315 [1st Dept 2008], lv denied 11 NY3d 928 [2009]). That the events unfold in a known drug area is a factor to be considered, but it is not determinative. Thus, observing a defendant hand a bag containing two small white objects to another before walking away, in close temporal and spatial proximity to the defendant's apprehension, without observing anything that appeared to be money being handled or exchanged, at most, provided reasonable suspicion to detain but not probable cause to arrest ( see People v Ayarde , 161 AD3d 630 , 631 [1st Dept 2018]). Similarly, the officer's observation of a quick hand-to-hand interaction without some handling of physical property or exchange of currency, does not give rise to probable cause to arrest. \"Police officers cannot make an arrest in search of a crime; rather, probable cause to believe that a crime has been committed must exist prior to an arrest\" ( People v Jones , 202 AD3d 821 , 825 [2d Dept 2022]). Mr. Tapia was arrested and searched based on a brief interaction with a known drug user in a known drug area. The observing officer admitted that he was not able to hear what Ms. Rivera said to Mr. Tapia and did not see [*8] an object or money being exchanged by either of them. Their behavior, viewed in totality, was at best equivocal and susceptible of an innocent interpretation, and therefore could not form the basis for reasonable suspicion to believe that defendant had engaged in a crime ( see People v Messano , 41 NY3d 228 , 235 [2024]), or probable cause to arrest ( see People v Holmes , 81 NY2d at 1058; People v Moore , 6 NY3d at 500-501; People v Hernandez , 223 AD3d 751 , 754 [2d Dept 2024]; People v Wilson , 175 AD2d at 17). Indeed, the prosecution admitted that the police did not obtain probable cause until Officer Figuereo recovered the object discarded by Ms. Rivera. However, by the time this object was recovered defendant had already been handcuffed, arrested, searched, and transported to the precinct for an additional strip search ( see Ayarde at 631). That Ms. Rivera was a known drug user does not legitimize the officers' intrusion without the requisite reasonable suspicion or probable cause. As the Court of Appeals recently stated, \"Guilt by association . . . has no place in our jurisprudence\" as it is \"one of the most odious institutions of history\"; \"[t]he inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security\" ( People v Messano , 41 NY3d 228 , 234-235 [internal quotation marks and citations omitted]). In Messano , like in this case, the officers engaged in a higher level of intrusion than authorized by the attendant circumstances. That the events unfolded in a drug-prone location, that a known drug user was present, and that the officer believed that a hand-to-hand exchange had occurred was of no moment. As in this case, in Messano , the officer conceded that he never saw anything change hands between the defendant and the other driver. In reversing the defendant's conviction, the Court of Appeals stated, \"[T]he officers' observations could not form the minimum showing necessary to establish a reasonable suspicion\" ( id. at 235 [internal quotation marks omitted]). Similarly, in this case, the officers' observations cannot form the minimum showing necessary to establish reasonable suspicion or probable cause. The prosecution acknowledged at the hearing that Officer Perez was not able to see an exchange of objects, drugs, or money, and testified about knowledge obtained after the fact. The prosecution also acknowledged that until Officer Figuereo recovered the discarded object the police did not have any probable cause. The officers lacked reasonable suspicion to detain or probable cause to arrest the defendant based on actions that were at all times innocuous and readily susceptible of an innocent interpretation. Accordingly, because I believe the judgment of conviction, should be vacated, the motion to suppress physical evidence granted, and the indictment dismissed, I respectfully dissent. Footnotes Footnote 1: In addition to the one week of narcotics training noted by the dissent, Officer Perez had also made one hundred drug-related arrests, approximately 10 of which were in the vicinity of the subject motel, which was known for drug sales. Footnote 2: We note that the dissent posits that, under People v Jones (90 NY2d 835 [1997]), for probable cause to exist, an officer must observe the telltale signs of a drug sale. However, Jones holds that a \"telltale sign\" is not an \"indispensable prerequisite to probable cause\" ( id. at 837). Whether probable cause exists is fact-specific, therefore the dissent's citation to factually dissimilar cases is unavailing ( see e.g. People v Ayarde , 161 AD3d 630 , 631 [1st Dept 2018] [finding no probable cause where the \"detective did not testify that he observed anything that appeared to be money being exchanged or handled by either of the two men, that there was anything furtive about their behavior aside from the sheer brevity of their encounter, or that the area was particularly drug prone\"]). Footnote 1: Sargeant Sanchez and Officers Perez and Carrero were in one vehicle and Officers Figuereo and Pimentel in the other. Footnote 2: Officer Perez had arrested her once and issued a Desk Appearance Ticket, Officer Carrero had arrested her twice for misdemeanor drug possession. Footnote 3: Officer Perez stated that it was approximately five seconds. Footnote 4: At the hearing, it was not clear from the testimony if they touched the palm of their hands or if Mr. Tapia touched the top of Ms. Rivera's hand. The defense argued that he touched the top of Ms. Rivera's hand and the prosecution did not dispute this. Footnote 5: The People acknowledge that most of Officer Perez's testimony regarding the transaction was after the fact. Footnote 6: There is contradictory information in the felony complaint, wherein Officer Perez wrote, \"Upon approaching defendant Tapia, I saw him throw one bag of marijuana onto the ground which he had been holding in his right hand in a public place.\" "
},
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"value": "People conducted proper colloquy with grand juror outside presence of\ngrand jury. Grand juror revealed he worked for the county sheriff's office\nat the jail where defendant was being held. Prosecutor thereafter \"engaged\nthe grand juror in the requisite 'further inquiry' outside the presence of the\nother grand jurors\" which revealed that the grand juror and defendant had\nnot discussed the case and that the grand juror had not heard defendant\ndiscussing the case with anyone else. Any question of juror's impartiality\nwas dispelled by the unequivocal response to the prosecutor's immediate\nfollow-up question, as well as the statements that the [grand juror] had\nnever discussed [with defendant nor heard him discuss] this case\"\n."
}
]
|
2024.05073 | [
{
"from": "human",
"value": "Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Gurley 2024 NY Slip Op 05073 [231 AD3d 558] October 15, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Thea Gurley, Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (V. Marika Meis of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Maria I. Wager of counsel), for respondent. Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered November 16, 2015, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 25 years to life, unanimously affirmed. Order, same court and Justice, entered on or about April 14, 2023, denying defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10, unanimously affirmed. The verdict was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349 [2007]). Initially, we find no basis for disturbing the jury's credibility determinations. Defendant's own statements to police established that the victim was shot with defendant's gun, and there was ample basis for the jury to reject defendant's contention that he shot the victim in self-defense. The evidence supported the conclusion that in the days prior to the shooting, defendant engaged in a number of hostile text message exchanges with the victim about money owed, and that defendant reached out to multiple people seeking a gun that he intended to use soon thereafter. Shortly after obtaining a gun, defendant notified the victim that he was in the neighborhood and allowed the victim into his apartment. The evidence also supported the conclusion that defendant then shot the victim, who was unarmed, from several feet away and attempted to cover up his involvement in the shooting by placing the victim in a building common area and informing police that he first saw the victim when he returned from a party in Brooklyn. The jury also had ample basis to reject defendant's account of events because his statements to police contained multiple inconsistencies and defied credulity. We have considered defendant's arguments about how the People's conduct allegedly impaired the integrity of the grand jury proceedings and find them unavailing. Specifically, we find that the People had an adequate basis for presenting defendant's incriminating statements to the grand jury, as they constituted party admissions ( see People v Harris , 148 AD2d 469, 469 [2d Dept 1989]). The People also represented that they instructed the grand jury as to justification. The court reviewed the grand jury minutes and concluded that the instructions given were adequate. Finally, defendant's current contention that the evidence presented to the grand jury was legally insufficient is unreviewable ( see People v Smith , 4 NY3d 806 , 807-808 [2005]). The court properly denied defendant's motion seeking to suppress the statements he made to police, as well as the data retrieved from his cell phone. Defendant was not in custody when he made his initial statements to police inside his apartment building ( see generally People v Yukl , 25 NY2d 585, 588-589 [1969], cert denied 400 US 851 [1970]). There was ample basis for the court to conclude that defendant's subsequent statements at the precinct were made only after he was [*2] read his Miranda rights, and that defendant's statements were made knowingly, intelligently, and voluntarily. As for the search of defendant's cell phone, defendant's arguments are mostly unpreserved, and we decline to consider them in the interest of justice. As an alternative holding, we find that there was ample basis to conclude that defendant provided his phone to police voluntarily, and that the police stored it in a manner consistent with police protocol while defendant was questioned. Police only searched the phone after obtaining a warrant. We find that the search warrant was not overly broad, especially in light of the recognized nature of cell phone data ( see e.g. People v Bush , 189 AD3d 643 , 644 [1st Dept 2020]). Contrary to defendant's contention, the record establishes a basis for crediting the informants' reliability ( see e.g. People v Hetrick , 80 NY2d 344, 348-349 [1992]). Finally, defendant has not made a sufficient showing warranting a hearing concerning whether the warrant application contained any knowingly false statements, or any statements made in reckless disregard of the truth ( see People v Franklin , 137 AD3d 550 , 552-553 [1st Dept 2016], lv denied 27 NY3d 1132 [2016]). We find that defendant received effective assistance of counsel under both the state and federal standards ( see People v Benevento , 91 NY2d 708, 713-714 [1998]; Strickland v Washington , 466 US 668 [1984]). Defendant has not shown that counsel's alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived him of a fair trial or affected the outcome of this case. Even assuming that defendant is correct that counsel should have hired an expert to retrieve more of the text messages deleted from his phone, the additional text messages were consistent with those previously uncovered and presented to the jury, in that they showed hostile and potentially threatening exchanges between defendant and the victim. The failure to retrieve and present this largely cumulative evidence does not undermine confidence in the outcome of this trial, nor does it undermine the fairness of the proceeding as a whole. Contrary to defendant's contention, counsel was also not ineffective for failing to object to that portion of the justification charge addressing whether the jury was to find that defendant was the initial aggressor. There was a reasonable view of the evidence that defendant was the initial aggressor, and counsel will not be deemed ineffective for failing to make an argument that had little or no chance of success ( see People v Caban , 5 NY3d 143 , 152 [2005]). Finally, counsel was not ineffective for failing to request an intent to use unlawfully and justification charge. Even assuming that defendant was correct that he was justified in using the gun when the victim came to his apartment, defendant has presented no reasonable view of the evidence supporting a conclusion that he was justified in obtaining [*3] this \"throwaway\" gun, and then in possessing it for several hours before he allowed the victim into his home and then shot him ( see generally People v Brown , 33 NY3d 316 , 321 [2019]). We also find that defendant was not denied effective assistance of counsel based on an alleged conflict of interest. While the record demonstrates that counsel and defendant initially strongly disagreed about the best defense strategy, defendant has not shown that there was any actual conflict of interest between them ( see generally People v McDonald , 68 NY2d 1, 8 [1986]; People v Medina , 44 NY2d 199, 209 [1978]). Nor has defendant shown that the alleged conflict operated on or affected the conduct of the defense ( see People v Ortiz , 76 NY2d 652, 657 [1990]). We note that defendant ultimately agreed to withdraw the alibi defense and proceeded on a theory of justification, consistent with counsel's recommendation. We have considered and rejected defendant's contention that the court failed to perform an inquiry into whether a conflict existed. The court provided defendant with an opportunity to address the alleged conflict, and ultimately defendant told the court that he was aware of counsel's skill and track record, but wanted two attorneys instead of one so that he could have multiple perspectives. We perceive no basis to reduce defendant's sentence. We have considered defendant's remaining arguments, including those raised in his pro se brief, and find them unavailing. Concur—Webber, J.P., Kapnick, Kennedy, Scarpulla, Shulman, JJ. Motion for leave to file surreply, granted."
},
{
"from": "gpt",
"value": "Court\nrejected defendant's contention that grand jury's integrity was impaired by\nthe People.\n\"[W]e find that the People had an adequate basis for presenting\ndefendant's incriminating statements to the grand jury, as they constituted\nparty admissions (see People v Harris, 148 AD2d 469, 469 [1st Dept\n1989]). The People also represented that they instructed the grand jury as\nto justification. The court reviewed the grand jury minutes and concluded\nthat the instructions given were adequate. Finally, defendant's current\ncontention that the evidence presented to the grand jury was legally\ninsufficient is unreviewable....\n\""
}
]
|
2024.06385 | [
{
"from": "human",
"value": "Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Mero 2024 NY Slip Op 06385 Decided on December 19, 2024 Court of Appeals Halligan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 19, 2024 No. 122 [*1] The People & c., Respondent, v Edward Mero, Appellant. Matthew C. Hug, for appellant. Emily Schultz, for respondent. HALLIGAN , J. The defendant raises various challenges to his convictions for two counts of murder in the second degree and two counts of tampering with physical evidence. We conclude that the trial court did not err in denying the defendant's motion to sever the charges relating to each murder from each other. With respect to the improper, undisclosed business relationship between the defendant's trial counsel and an Assistant District Attorney (ADA) involved in the defendant's prosecution, the record supports the trial court's determination that although this arrangement created a potential conflict of interest, it did not operate on the defense and thus did not require vacatur of the conviction. As to the defendant's remaining claims, we conclude that they are either without merit or unreviewable, and affirm. This appeal arises from Edward Mero's convictions for two separate murders, committed almost two years apart and tried together. The first victim was the defendant's roommate, who was found dead in their shared apartment in 2013 after a fire that occurred under circumstances that later raised questions about her cause of death. The second victim was a woman whom defendant had hired to go on a date with him in December 2014; her body [*2] was found in a shallow grave in May 2015. The defendant was arrested in 2017 and charged with two counts of murder in the second degree and two related counts of tampering with physical evidence. The charges were joined in a single indictment, and the defendant moved to sever them pursuant to CPL 200.20 (3). He argued that the cases \"could not be any more different\" because the victims were unrelated and their deaths occurred nearly two years apart under dissimilar circumstances, that his defenses for each would be different, and that the evidence against him for each murder was \"underwhelming.\" The trial court denied the motion, explaining that the distinct evidence relating to each murder would enable the jury to consider separately the proof for each charge, and joinder thus would not unduly prejudice the defendant. The jury convicted the defendant of both murders and the associated tampering charges. During trial, defense counsel reported an incident to the trial court that ultimately resulted in dismissal of a juror. Counsel explained that a juror had been present during a \"boisterous\" and \"inflammatory\" conversation in the courthouse lobby. She admitted to the court that she had made \"derogatory comments\" about her client [FN1] . The parties agreed to strike the juror. In December 2019, the defendant moved to vacate his convictions under CPL 440.10, arguing that his trial counsel and the ADA who prosecuted him had an improper business relationship that constituted a conflict of interest. A hearing revealed that the defendant's trial counsel had paid the ADA to write several briefs for her clients over a four-year period. The trial court denied the motion to vacate, concluding that although there was a potential conflict of interest, it did not operate on the defense. The defendant appealed the judgment of conviction and sentence and the order denying his CPL 440 motion, claiming, among other things, that the trial court abused its discretion in denying the motion to sever and erred in denying the motion to vacate due to a conflict of interest. The Appellate Division affirmed the judgment and the order. On severance, the Court reasoned that the defendant's characterization of the evidence for each murder as \"underwhelming\" belied any suggestion that proof of one murder was more significant than proof of the other, and that the defendant's argument that the crimes \"could not be any more different\" refuted his contention that the jury would struggle to consider them separately ( see 221 AD3d 1242, 1250 [3d Dept 2023]). The Appellate Division agreed with the trial court that the potential conflict of interest did not operate on the defense and rejected the defendant's other challenges to the conviction. Two Justices dissented with respect to severance, taking the view that the proof of the second murder was \"significantly more abundant in quantity and significant in scope\" than the proof relating to the first murder ( id. at 1253 [Reynolds Fitzgerald, J., dissenting in part]). The dissenting Justices concluded that, even with limiting instructions, the jury would likely \"focus on the abhorrent common nature of the crimes,\" rather than \"the fundamental differences of proof\" ( id. ). A dissenting Justice granted leave to appeal (40 NY3d 1095 [2024]), and we now affirm. We begin with the defendant's motion to sever the charges related to the first murder from those related to the second murder. CPL 200.20 (2) (c) allows joinder of offenses \"based upon different criminal transactions\" that \"are defined by the same or similar statutory provisions and consequently are the same or similar in law\" (CPL 200.20 [2] [c]). There is no dispute that joinder of the offenses under this provision was proper in the first instance. The defendant was charged with two counts of murder in the second degree and two corresponding counts of tampering with physical evidence, and acknowledged that joinder was \"permissible\" in moving to sever. Additionally, there were several overlapping witnesses who testified regarding both murders, namely the medical examiner and a jailhouse informant to whom the defendant had confessed committing both murders. Where counts have been joined under CPL 200.20 (2) (c), the CPL provides that the trial court has discretion to sever them if doing so would be \"in the interest of justice and for good cause shown\" ( id. 200.20 [3]). This provision has its origins in a 1936 amendment to the Code of Criminal Procedure that allowed joinder of \"two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan\" (Code Crim Proc § 279 [eff 1936]). The statute specifies two situations that establish good cause: first, where there is \"[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense\"; and second, where there is \"[a] convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial\" (CPL 200.20 [3] [a], [b]). The statute expressly notes that good cause is not limited to these grounds ( see id . 200.20 [3]), and we have explained that \"a defendant's fundamental right to a fair trial free of undue prejudice\" must be protected when offenses are joined for trial ( People v Lane , 56 NY2d 1, 8 [1982]). Denial of a defendant's motion to sever is reviewed for abuse of discretion ( see People v Ford , 11 NY3d 875 , 879 [2008]). The defendant's arguments before us on severance are cursory, and primarily summarize the points made by the Appellate Division dissent. The defendant asserts that \"the jury was incapable of considering the proof separately with respect to each offense\" because the proof of each crime was \"markedly different\" and \"dissimilar.\" But that is generally true whenever offenses are joined pursuant to CPL 200.20 (2) (c), and the key question is whether it would be difficult for the jury to consider separately the proof for each offense, a point we address below. The defendant does not show there was \"[s]ubstantially more proof\" of the first offense than the second (CPL 200.20 [3] [a]). Rather, he characterized the amount of proof for each as similarly \"underwhelming,\" and asserted that there was a \"clear danger\" the jurors would treat the evidence cumulatively because of the \"abhorrent nature of the allegations.\" Even if we were to accept that characterization of the evidence, the question, again, is whether the jury would find it difficult to segregate the proof for each set of offenses ( see Ford , 11 NY3d, at 879; United States v Werner , 620 F2d 922, 929 [2d Cir 1980] [despite the risk that juries may use evidence cumulatively where charges are joined for trial, \" 'the objection disappears' \" provided that \" 'the accused's conduct on several separate occasions can properly be examined in detail' \" and \" 'the only consideration is whether the trial as a whole may not become too confused for the jury' \" (quoting United States v Lotsch , 102 F2d 35, 36 [2d Cir 1939] [L. Hand, J.])]). As both the trial court and the Appellate Division concluded, the defendant did not make that showing here. The trial court gave thorough instructions to the jury, once before trial began, once before jury deliberation began, and once in response to a note requesting a readback of the instructions [FN2] . Absent evidence to the contrary, we assume the jurors followed these instructions ( see People v Stone , 29 NY3d 166 , 171 [2017]; see also People v Adames , 42 AD3d 328 , 329 [1st Dept 2007] [\"(T)he court's jury instructions were sufficient to prevent the evidence of (one incident) from having any prejudicial effect with respect to the (joined incident)\"]; cf. People v Davis , 225 AD3d 62 , 75 [1st Dept 2024] [\"(I)t cannot be fairly said that the evidence was easily segregable in the minds of the jurors where the trial court failed to give a limiting instruction to that effect\"] [internal quotation marks and citation omitted]) [FN3] . [*3] Given the facts presented here, the defendant failed to demonstrate \"a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense\" (CPL 200.20 [3] [a]). [FN4] The defendant and Judge Rivera in dissent suggest that joinder inevitably prejudiced the defendant given the \"heinous\" nature of the charged crimes (Rivera, J., dissenting op at 13). However, the defendant points to nothing akin to the \"unique\" and \"peculiar\" context in People v Shapiro that mandated severance—circumstances that included what this Court termed \"aberrant sexual practices,\" the aggregation of 64 counts of one offense with 2 counts other, more serious offenses, and a request by the defendant to testify regarding one set of offenses, but not the other (50 NY2d 747, 755-756 [1980]). Moreover, we note that the Appellate Division Departments have permitted joinder of homicides on numerous occasions ( see e.g. People v Bonner , 94 AD3d 1500 , 1501 [4th Dept 2012]; People v Perez , 47 AD3d 409 , 411 [1st Dept 2008]; Adames , 42 AD3d at 329; People v Oliveira , 2 AD3d 122 , 123 [1st Dept 2003]), and nothing in our case law suggests joinder is impermissible solely because of the nature of the crime. None of the other factors to which Judge Rivera points indicates that the trial court abused its discretion in declining to sever ( see Rivera, J., dissenting op at 12-14). The dissent notes the People's statement at oral argument that proof of the second murder was stronger than proof of the first ( see id . at 12), but proof of joined offenses will rarely be identical in strength. Additionally, CPL 200.20 (3) (a) provides for severance if the jury cannot segregate proof—a showing which, as noted, was not made here. The dissent describes the trial as \"complex\" (Rivera, J., dissenting op at 14), but that does not mean the jury could not segregate the evidence of each charge. Finally, both dissents make sweeping contentions regarding the CPL's joinder and severance provisions. Judge Rivera takes the view that \"wholly unrelated offenses\" cannot be joined \"because of the inherent prejudice to a defendant from propensity evidence\" (Rivera, J., dissenting op. at 8-9; see also id . at 9 n 1). But joinder of factually unrelated offenses does not necessarily present a greater risk of prejudice than joinder of factually related offenses ( see e.g. People v Forest , 50 AD2d 260, 262 [1st Dept 1975] [risk of \"conviction by reason of ( ) cumulative effect\" required severance where \"all three crimes (were) of a similar nature\"]; cf. Herring v Meachum , 11 F3d 374, 378 [2d Cir 1993] [\"(B)ecause the evidence with respect to each murder was distinct and easily compartmentalized, the risk of jury confusion at petitioner's trial was significantly limited\"]). The Chief Judge would go even further, saying that offenses may be joined under CPL 200.20 (2) (c) only if all the evidence of one offense would be admissible in the case in chief of the other ( see Wilson, Ch. J., dissenting op at 2). But the Legislature addressed joinder under this circumstance when it enacted CPL 200.20 (2) (b), which authorizes joinder of cases in which \"proof of the first offense would be material and admissible as evidence in chief upon a trial of the second\" (or vice versa) (CPL 200.20 [2] [b]). In any event, all that is before us are the arguments raised by the defendant, who did not contest that CPL 200.20 (2) (c) authorized joinder in the first instance and does not press the dissents' various points about legislative history or critiques of our joinder scheme. Accordingly, we hold that the trial court did not abuse its discretion in denying the defendant's motion to sever the charges against him. The defendant argues that the improper business relationship between his defense counsel and an ADA who was prosecuting him created an impermissible conflict of interest that required vacatur of his conviction. He first contends that the arrangement created an actual conflict of interest, which requires reversal if not waived ( see People v Solomon , 20 NY3d 91 , 95 [2012]). Such a conflict arises when an attorney \"has divided and incompatible loyalties within the same matter necessarily preclusive of single-minded advocacy\" ( People v Brown , 33 NY3d 983 , 987 [2019] [cleaned up and internal quotation marks omitted]). That is not what occurred here. The ADA was paid for drafting four appellate briefs and a motion for a change of venue in other cases litigated outside of the county where this prosecution took place. The record indicates that the work was performed on nights and weekends, without access to defense counsel's office or files. The defendant also argues, in the alternative, that the arrangement created a potential conflict of interest necessitating reversal. We have held that reversal of a conviction is required if a defendant shows that a potential conflict actually operated on the conduct of his defense ( see People v Sanchez , 21 NY3d 216 , 223 [2013]). Evidence [*4] that unconflicted counsel would have acted in a \"more vigorous, less inhibited manner\" may establish this point ( People v Harris, 99 NY2d 202, 211 [2002]). The inquiry presents a mixed question of law and fact, and thus we will reverse only if the Appellate Division's determination lacks record support ( see People v Ennis , 11 NY3d 403 , 411 [2008]). We certainly do not condone the conduct of trial counsel. But the trial court characterized defense counsel's advocacy as \"meaningful\" and \"zealous[] and effective[]\" notwithstanding the incident that led to the removal of the juror within earshot of the disparaging comments about the defendant. The juror was dismissed with the consent of all parties, and no other jurors heard the remarks. The defendant has produced no evidence suggesting the business conflict had anything to do with the removal of the juror, or that it otherwise operated on his defense. Nor is the conflict here akin to that in People v Shinkle (51 NY2d 417 [1980]). There, the defendant's attorney left his position with the Legal Aid Society in the months preceding the defendant's trial and joined the District Attorney's office in a senior leadership position ( id. at 420). We held that the resulting \"unmistakable appearance of impropriety\" and \"continuing opportunity for abuse of confidences\" was significant enough to disqualify the entire District Attorney's office from handling the prosecution ( id. ). Indeed, this Court noted that the attorney had extensively interviewed the defendant, \"was intimately familiar with the contents of his file[,] and assisted in the formulation of defense strategy\" ( id. at 419). The circumstances here are different. The prosecutor here never represented the defendant, and the record indicates that defense counsel did not share information or confidences with the prosecutor regarding the defendant. The defendant's reliance on People v Wandell is similarly misplaced (75 NY2d 951 [1990] [Mem]). We limited our holding to the unique circumstances presented there: the concurrent representation of a defendant and the People's chief witness against him, following a reversal in a prior case for a similar omission by the same attorney ( see id . at 952). The defendant's remaining claims are meritless. First, the defendant argues that he was deprived effective assistance of counsel, noting defense counsel's conflict of interest, the incident that led to the removal of a juror, and various other points about trial strategy. As the trial court explained, the disparaging comments made in the courtroom lobby \"clearly operated on the defense of the case\" to the extent it resulted in the dismissal of a juror. But the court also determined that this incident was unrelated to the potential conflict of interest between defense counsel and the ADA, that the ADA \"was not present during the lobby fiasco,\" and that there was \"no causal relationship between [defense counsel's] disparaging remarks and the business relationship with [the ADA].\" The trial court further held that defense counsel provided meaningful representation and was detailed in her work. The defendant makes several other claims about the performance of his trial counsel, including the decision to forgo calling several witnesses and not to investigate a claim about a trooper's offhand remark. But the defendant failed to demonstrate that these decisions were not strategic. Second, the defendant argues that his convictions are unsupported by legally sufficient evidence, but the record refutes this claim. As to the first murder, the evidence at trial showed that the defendant and the victim had a loud argument the night she died, the victim's body showed signs she was dead before the fire started, the defendant bragged to coworkers about his ability to get rid of a body by arson and offered contradictory alibi statements to the police, and a jailhouse informant testified that the defendant confessed the murder and arson to him. With respect to the second murder, the evidence showed that defendant was the last person to see the victim, was one of few people with access to the property on which her body was found, got rid of his car shortly after the victim disappeared, implicated himself in an interview with police, and confessed to two jailhouse informants who testified to specific details of the murder. Third, the defendant contends that two men he met in jail, each of whom testified at trial that the defendant had confessed to one or both of the murders, were acting as agents of the state and their statements should therefore have been suppressed. As the Appellate Division correctly noted, a defendant must be able to show that the State was \"actively involved in, or even encouraged\" the decision to volunteer the statements (221 AD3d at 1248 [internal quotation marks omitted]). The record lacks evidence to that effect. Fourth, the defendant argues that admission of a text message and a short colloquy with investigators constituted an impermissible comment on defendant's invocation of his right to silence. Without considering the merits of this claim, we conclude that any error was harmless given the court's curative instruction ( cf. People v McLean , 243 AD2d 756, 756—757 [3d Dept 1997]). Finally, the defendant's weight of the evidence claim is unreviewable in this Court ( see People v Bleakley , 69 NY2d 490, 495 [1987]; People v Danielson , 9 NY3d 342 , 349 [2007]). Accordingly, the order of the Appellate Division should be affirmed. WILSON , Chief Judge (dissenting): I agree with my dissenting colleague that our fundamental prohibition on convictions based on propensity requires us to reverse and remit for two separate trials. I write separately because, where two unrelated crimes are charged, our Molineux doctrine must take precedence over administrative convenience. I therefore interpret CPL 200.20 (3) as incorporating the Molineux rule by requiring severance unless the evidence from each of the joined charges would fit under a Molineux exception. It is helpful to think of this case in terms of Molineux . Mr. Mero was tried jointly for the murders of two young women. One woman was buried in a shallow grave; her badly decomposed body showed that she had suffered significant blunt force trauma to her head and face. The other young woman was Mr. Mero's roommate. Her badly charred body was recovered after a fire in their shared apartment, where Mr. Mero had been hours earlier; the body showed no signs of smoke inhalation, suggesting she was dead before the fire began. Suppose, for a moment, that Mr. Mero had first been tried separately for the murder of the woman found in a shallow grave. Whether he had been convicted or acquitted of that murder, our Molineux rule would have prevented the introduction of the evidence against him, the fact of conviction (or acquittal), or the fact of arrest, from introduction in a separate trial for the murder of his roommate. The same would be true if he had been tried first, separately, for the murder of his roommate. There is no argument that any Molineux exception applies here. The efficiency arguments, such as they are, are that the same medical examiner and jailhouse informant were involved in both cases. But our Molineux doctrine does not allow the convenience of witnesses to overcome Mr. Mero's right to a fair trial. It is also worth thinking about the following question: why did the People want to try these two unrelated crimes together? If the evidence for each crime was very strong, the People should have wanted two chances—with two separate juries—to put Mr. Mero away for 25 to life. It is only if the evidence for one or both was not very strong that the People would sacrifice two bites at the apple for one. That is precisely what our Molineux rule prevents. I I begin from the same well-established premise as Judge Rivera: a defendant may not be convicted on evidence of criminal propensity ( People v Molineux , 168 NY 264, 291 [1901]). We do not permit proof of guilt based on prior bad acts or prior convictions, except in very limited circumstances, such as to prove identity where the similarities between two offenses are \"unusual enough to compel the inference that the defendant committed both\" and identity is not otherwise conclusively established ( People v Agina , 18 NY3d 600 , 603 [2012], quoting People v. Beam, 57 NY2d 241, 251 [1982]), or to prove intent \"when proof of the act falls short of demonstrating that the defendant acted with a particular state of mind and where proof of a prior act is relevant to that issue\" ( People v Alvino , 71 NY2d 233, 242 [1987]). Unless a Molineux exception applies, the defendant's guilt must be proved by evidence related to the charged crime only. Based on that fundamental rule, we have repeatedly held that evidence of [*5] past crimes is inadmissible unless it serves a non-propensity purpose, and its probative value outweighs the risk of prejudice ( see e.g., People v Weinstein , ___ NY3d ___, 2024 NY Slip Op 02222 at *9, 2024 WL 1773181 [Ct. App. Apr 25, 2024]). Like Judge Rivera, I believe that CPL 200.20 (2) (c), which permits joinder of offenses defined by the same or similar statutory provisions, creates the clear risk of convictions based on propensity. I depart from my dissenting colleague in my analysis of how the Molineux rule should inform our reading of CPL 200.20 (3), which gives courts the authority to sever offenses \"in the interest of justice and for good cause shown.\" Judge Rivera would hold that trial courts abuse their discretion in denying severance where joinder \"carries[s] significant risks that the jury would determine guilt based on the appearance of defendant's criminal disposition and . . . the evidence of guilt on one . . . count[] would spill over and bolster the evidence of the other,\" and those risks cannot be overcome (Rivera, J. dissenting op at 2). In applying that rule, she suggests that \"considerations of judicial economy\" may sometimes justify joinder of offenses ( id. at 15-16). In my view, there is no place for such considerations in our analysis. The provisions at issue here were intended to give the state the tools it needed to fight organized crime by allowing prosecutors to join a defendant's interrelated offenses for trial. Nothing in the legislative history indicates a desire to erode the Molineux rule, which was deeply entrenched by the time these provisions were enacted. I would therefore apply our Molineux jurisprudence to hold that good cause to sever exists as a matter of law where, as here, there is no non-propensity purpose for which evidence of one offense could be admitted at the trial of the other. Good cause would also exist where the risk of prejudice outweighs the probative value of joinder. II \"In matters of statutory . . . interpretation, 'legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the enactors'\" ( Sedacca v Mangano , 18 NY3d 609 , 615 [2012]). In 1936, when the legislature enacted the provisions at issue here, the Molineux rule was already recognized as fundamental to New York law. We do not construe statutes to derogate the common law unless they do so clearly [FN5] . Here, neither the text nor the legislative history of CPL 200.20 (2) (c) and (3) indicates that the legislature intended to displace Molineux . Instead, the \"good cause\" provision is best read to incorporate the Molineux rule to require severance where evidence of one offense would not be admissible to prove the defendant's guilt of the other. A It is a fundamental principle of our justice system that a person is presumed innocent until proven guilty. We have long recognized that the presumption of innocence means that the state may not introduce evidence of a past crime as proof of a person's criminal propensity ( People v Molineux , 168 NY 264, 291 [1901]; see also People v Arafet , 13 NY3d 460 , 465 [2009] [\"The point of Molineux is to prevent a jury from convicting a defendant because of his criminal propensity\"]). The Molineux rule \"serves as a judicial bulwark against a guilty verdict based on supposition rather than proof, on 'collateral matters or [] because of [a defendant's] past' or on the defendant's 'bad character' alone\" ( Weinstein , 2024 NY Slip Op at *7, quoting People v Alvino , 71 NY2d 233, 241 [1987]). The \"time-tested rule against propensity evidence\" ( id. ) substantially predates the legislature's enactment, in 1936, of the joinder and severance provisions at issue here. In 1901, we described the Molineux rule as \"universally recognized and [] firmly established in all English-speaking lands, . . . rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of the Magna Charta\" ( People v Molineux , 168 NY 264, 291 [1901]). Molineux quoted our 1873 decision in Coleman v People , where we explained: \"It would be easier to believe a person guilty of one crime if it was known that he had committed another of a similar character, or, indeed, of any character; but the injustice of such a rule in courts of justice is apparent. It would lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offenses to produce conviction for a single one\" ( id. at 292, quoting Coleman v People , 55 NY 81, 90 [1873]). As we recognized in 1901, there are exceptions to the broad rule that evidence of one crime may not be introduced in a prosecution for another. Evidence may be relevant, for example, to establish motive, intent, the absence of mistake or accident, a common scheme, or identity ( id. at 293). Where evidence of other crimes is relevant to \"some issue, other than mere criminal propensity ,\" and its \"probative value exceeds the potential for prejudice resulting to the defendant,\" it may be admitted ( Weinstein , 2024 NY Slip Op at *9, quoting People v Hudy , 73 NY2d 40, 55 [1988] and People v Alvino , 71 NY2d 233, 242 [1987]). \"The legislature . . . is presumed to be aware of the common law\" ( Gletzer v Harris , 12 NY3d 468 , 476-477 [2009], citing McKinney's Cons Laws of NY, Book 1, Statutes § 301 [a]). We therefore strictly construe statutes in derogation of the common law, and common law rules \"are to be no further abrogated than the clear import of the language used in the statute\" ( Matter of Midland Ins. Co. , 16 NY3d 536 , 547 [2011], quoting Transit Comm. v Long Is. R.R. Co. , 253 NY 345, 355 [1930]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 301 [a]; Oden v Chemung County Indus. Dev. Agency , 87 NY2d 81, 86 [1995]; Matter of Excelsior Pictures Corp. v Regents of Univ of State of N.Y. , 3 NY2d 237, 245 [1957]). This presumption extends to statutes that derogate from the common law rules of evidence (McKinney's Cons Laws of NY, Book 1, Statutes § 305). The Molineux rule was firmly established in our jurisprudence long before the legislature enabled the joinder of offenses for trial in 1936. Our pre-1936 decisions lead inexorably to the conclusion that joinder of offenses—especially offenses of the same nature—may lead to convictions based on criminal propensity. Recall that our 1873 decision in Coleman explained that \"[i]t would be easier to believe a person guilty of one crime if it was known that he had committed another of a similar character, or, indeed, of any character\" (55 NY at 90). CPL 200.20 (2) (c)—the provision under which the charges against Mr. Mero were joined—makes offenses joinable when they are \"defined by the same or similar statutory provisions and consequently . . . the same or similar in law.\" To address the potential for prejudice arising from joinder of unrelated offenses, CPL 200.20 (3) provides that when offenses are joined under section (2) (c), the court may \"in the interest of justice and for good cause shown . . . in its discretion, order that any such offenses be tried separately.\" We must presume that in enacting section 279 of the Code of Criminal Procedure—the precursor to CPL 200.20—the legislature was aware of the Molineux rule. I therefore would not construe CPL 200.20 to derogate from the common law unless the \"clear import\" of the language requires it. Nothing in the language or the legislative history of CPL 200.20 suggests that the legislature wanted us to depart from the Molineux rule in determining when good cause exists to sever offenses of the same kind joined for trial. In fact, the legislative history of CPL 200.20 (2) (c) and (3) supports the conclusion that the legislature intended to enable joinder of interrelated offenses for the specific purpose of enabling prosecutors to combat organized crime. B CPL 200.20 (2) (c) and (3) were enacted to enable the state to successfully prosecute organized crime. In 1936, Thomas E. Dewey, then the Special Prosecutor for racketeering and organized crime in New York County, proposed legislation that would permit courts to join multiple offenses in one trial [FN6] . That legislation created section 279 of the Code of Criminal Procedure—the predecessor to CPL 200.20 (2) (c) and (3). In his memorandum to Governor Lehman, Dewey explained the problem section 279 was intended to solve: \"More than a century ago, when the State criminal procedure was established, the criminal problem was simple, crime was isolated and organized crime unknown. . . . Today, as you well know, crime is syndicated and organized. . . . Seldom, if ever, does any major criminal commit any crime under circumstances in which apprehension is possible. Only the tool commits the extortion, the assault, the stench bomb throwing or the acts of coercion; and if he be convicted there are a hundred others to take his place while the major criminal enterprise goes on without interruption. The only way in which a major criminal can be punished is by connecting to him, through various layers of subordinates, the related by separate crimes committed on his behalf.\" (Mem. from Thomas E. Dewey to Governor Herbert H. Lehman, Bill Jacket, L. 1936, ch. 328, at 6). He wrote that New York law—which prohibited joinder \"except in a conspiracy, which is a mere misdemeanor\"—created \"a procedural strait-jacket . . . Though the organization is conceived and functions to prey upon hundreds of men in the same status, each of its offenses must at present be tried separately before a separate court and a separate jury\" ( id. at 6-7). In fact, according to former Judge George Medalie, Mr. Dewey had a very specific \"major criminal\" in mind when he proposed section 279: Lucky Luciano. In a 1941 meeting of the federal Advisory Committee on Rules of Criminal Procedure, Judge Medalie told his fellow committee members that the New York statute \"was really prepared with a view to Lucciano [sic]\" (Minutes of the Advisory Committee on Rules of Civil Procedure [1941], Part 3, at 529-530, https://www.uscourts.gov/sites/default/files/fr_import/CR09-1941-min-Part3.pdf.pdf). Governor Lehman recommended the bill's passage in a special message to the Legislature in which he read Mr. Dewey's memorandum in its entirety. In addition to repeating Mr. Dewey's warnings about the rise of organized crime, Governor Lehman added his own. He explained that the existing rules \"frequently hampered\" efforts to \"combat the highly organized criminal groups of today,\" and that the changes would \"permit police and prosecutors to convict the 'higher-ups' in racketeering activities,\" who are \"the really dangerous and despicable enemies of society\" (Governor's Mem, Bill Jacket, L. 1936, ch. 328, at 9). Neither the Governor nor Special Prosecutor Dewey cited judicial efficiency as a free-standing goal. To the extent Mr. Dewey referenced efficiency at all, he did so in the specific context of organized crime prosecutions, writing: \"Aside from the great advantage which this procedure gives to professional criminals, the expense to the People in separately prosecuting the separate but interrelated offenses of the single criminal organization is very great. The People should not be compelled to suffer such expense and delay where a single criminal racket is on trial\" (emphasis added). Not only does Mr. Dewey's reference to efficiency underscore the centrality of organized crime prosecutions to the enactment of section 279, it also explicitly highlights that the efficiency arose from the joint prosecution of \"interrelated\" offenses—not from trying unrelated offenses together. The other reference to efficiency in the legislative history is a Bar Association letter recommending passage of the bill. Like Mr. Dewey, the Bar Association argued that prosecuting \"similar or connected offenses\" together would increase judicial efficiency—there was no attempt to justify joining completely unrelated crimes (Letter from N.Y. St. Bar Ass'n, Bill Jacket, L. 1936, ch. 328, at 14). The Bar Association's letter explained that the existing rules were \"defective\" because \"in any complicated situation involving the commission of more than one crime , although there be a common intent or motive, the propriety of joining the various crimes thus committed is a matter of some doubt\" ( id. at 13[emphasis added]). Both Mr. Dewey's memorandum and the Bar Association's letter describe situations that fit within a Molineux exception. There is no reason to think the legislature meant to do more than that. Nor does the legislative history's reference to the federal rules support justifying joinder of offenses on the basis of judicial economy. Section 279 of the Code of Criminal Procedure was, in part, modelled on the federal rules for joinder. But in 1936, the federal rules included no \"good cause\" provision. At that time, federal law permitted joinder of offenses \"[w]hen there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses , which may be properly joined\" (18 USC 557 [1934] [emphasis added]) [FN7] . The federal statute did not provide for severance upon a showing of good cause. Contemporaneous federal caselaw supports the argument that federal law did not permit joinder when it would be inconsistent with fundamental rules protecting the rights of defendants. U.S. Supreme Court jurisprudence [*6] required trial courts to \"determine whether, in a given case, a joinder . . . is consistent with the settled principles of criminal law,\" ( Pointer v United States , 151 US 396, 400 [1894]), including the \"fundamental . . . principle\" that \"the court must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment and to be tried by one jury\" ( id. at 403). In Pointer , \"[t]here was such close connection between the two killings in respect of time, place, and occasion that it was difficult, if not impossible, to separate the proof of one charge from the proof of the other\" ( id. at 404). The Court held that in light of the connection between the two jointly tried murders it was \"clear that the accused was not confounded in his defense . . . and that his substantial rights were not prejudiced\" by consolidation ( id. ). When the Federal Rules of Criminal Procedure came into effect in 1944, they included a provision granting the trial court authority to sever \"[i]f the joinder of offenses . . . appears to prejudice a defendant or the government\" (Fed. Rules Crim. Pro., rule 14 [a]). The 1944 Advisory Committee on Rules of Criminal Procedure cited Pointer to explain rule 14 (Notes of Advisory Committee on Rules [1944], (Fed. Rules Crim. Pro., rule 14). Subsequent legislative history does not change that analysis. In 1970, when New York adopted the new Criminal Procedure Law recommended by the Bartlett Commission, section 279 became CPL 200.20. The Bartlett Commission explained that section 200.20 \"substantially restate[d]\" existing law (Bartlett Commission, Staff Notes on Proposed Criminal Procedure Law § 100.20, at 173 [1967]). With respect to the requirements for severance, a staff comment to the 1967 proposed draft explained: \"The proposed draft, like the existing Criminal Code, is not inattentive to the possibility of prejudice when offenses are joined or consolidated solely because they are 'of the same or a similar character' (§ 100.20 [2(d)]). It expressly provides that in such instance (for example, two separate robberies), the trial court, in the interest of justice and for good cause shown, may in its discretion order [severance]\" ( id. ). Although section 200.20 underwent some revisions between 1967 and 1970, [FN8] the good cause provision did not change. The legislative history fully supports reading CPL 200.20 (3) to incorporate our longstanding prohibition on the admission of propensity evidence. It does not suggest that judicial economy can outweigh the risks of prejudice [*7] that come with the joinder of unrelated offenses for trial [FN9] . III Reading the Molineux rule into CPL 200.20 (3) is consistent with the statutory context, and in particular with CPL 200.20 (2) (b). Section (2) (b) permits joinder where \"proof of the first offense would be material and admissible as evidence in chief upon a trial of the second\" or vice versa. On first glance, incorporating Molineux into CPL 200.20 (3) might seem inconsistent with the existence of section (2) (b). But CPL 200.20 (2) (b) reaches offenses that would not be joinable under (2) (c). Imagine, for example, charges for tax fraud and murder, where the tax fraud occurred years before the murder, but the prosecution argued that the murder victim was killed for threatening to reveal the fraud. Those offenses would not be joinable as arising from the same transaction, or as involving the same legal provisions. But they would be joinable under section (2) (b) if evidence of the fraud were admissible to prove motive for the murder. Interpreting good cause under 200.20 (3) to incorporate the Molineux rule would not, therefore, render 200.20 (2) (b) redundant. Also, CPL 200.20 (2) (b) was enacted after sections 200.20 (2) (c) and (3). When section 279 was created in 1936, it permitted joinder where offenses (1) arose from \"the same act or transaction,\" (2) arose from \"two or more acts or transactions connected together or constituting parts of a common scheme or plan,\" or (3) constituted \"crimes of the same or a similar character\" (L 1936, ch. 328). Section 200.20 (2) (b) was added to the statute during the Bartlett Commission's drafting process, sometime between 1967 (when the draft bill did not include a [2] [b] equivalent) and 1970, when the new Criminal Procedure Law was enacted [FN10] . The addition of section (2) (b) in the late 1960s does not tell us anything about the 1936 legislature's intent in creating a good cause exception to joinder for offenses of the same kind. IV Here, the proper remedy is remittal for two separate trials. In denying Mr. Mero's request for severance, Supreme Court held that no good cause existed for severance because the \"jury will readily be able to consider the proof separately as it relates to each charge\" given that \"the evidence in each case is markedly distinct.\" That is the wrong standard. It was an abuse of discretion for Supreme Court to refuse to sever because the only reason to introduce [*8] evidence of one murder at a trial for the other would be to suggest Mr. Mero had a propensity to kill. At Supreme Court, the People conceded that they did not have \"a Molineux purpose\" for introducing evidence of one murder to show Mr. Mero's guilt in the other. As the court held, the record supports that concession. That means that in determining Mr. Mero's guilt in each killing, the only thing a juror could infer from evidence of the other was propensity. The only possible reason to permit joinder under these circumstances is efficiency. But efficiency cannot justify depriving Mr. Mero of his right to a fair trial. It was therefore an abuse of discretion for Supreme Court to deny severance. Requiring that a Molineux exception be met for the joinder of two distinct crimes is also the best way to make practical sense of the statutory scheme. It would be easier for a jury to keep distinct proof of two unrelated crimes that did not involve the same penal law violation—for example, an automobile theft committed a year after an unrelated assault charge—than to keep separate the proof of two unrelated murder charges, and the risk of conviction by propensity is greater in the latter than the former. The legislature's concern for the jury's ability to keep the proof in each offense separate—evidenced in CPL 200.20 (3) (a)—thus weighs against reading CPL 200.20 (2) (c) to permit the joinder of completely unconnected crimes. We must face the reality that when faced with a defendant charged with two crimes—especially two crimes that are the same in law—\"the natural and inevitable tendency of the tribunal . . . is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge\" ( People v Telfair , 41 NY3d 107 , 114 [2023], quoting People v Zackowitz , 254 NY 192, 198 [1930] [Cardozo, J.]). We should not read the joinder statutes quietly to circumvent our time-honored protections against such prejudice. The legislature did not intend to do so. I would read the joinder and severance provisions enacted in 1936 as the legislature intended: to allow joinder where offenses are interrelated, and to require severance when joinder would serve no purpose but prejudice, or where the risk of prejudice outweighs any probative purpose. RIVERA, J. (dissenting): Defendant was convicted of two unrelated murders, which occurred years apart, by different methods. There were no eyewitnesses to either death and no forensic evidence linked defendant to the crimes. The bodies were found in different locations. The common denominator was that defendant knew both victims: one was his roommate and the other, a female acquaintance. Defendant maintained his innocence and contended that one of the deaths was caused by an accidental fire. Nevertheless, the murders and the related evidence-tampering charges were joined in a single indictment. Eventually, they were tried before the same jury, over defendant's request for separate trials to avoid inevitable prejudice to his defense. Joinder of these counts rested solely on the ground that they \"are defined by the same or similar statutory provisions\" (CPL 200.20 [2] [c]). Failing to sever the trials carried significant risks that the jury would determine guilt based on the appearance of defendant's criminal disposition and that the evidence of guilt on one of the murder counts would spill over and bolster the evidence of the other. The court's instructions and counsel's advocacy could not overcome this prejudice to the defense. Therefore, the trial court abused its discretion by denying severance. On that ground, I would reverse defendant's convictions and order separate trials on each of the respective murder and related counts. I. Section 200.20 (2) (c) of the Criminal Procedure Law permits joinder of wholly unrelated offenses so long as \"such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law.\" But CPL 200.20 (3) authorizes a court, upon request by the defendant or the prosecution, to order that such dissimilar counts be tried separately \"in the interest of justice and for good cause shown.\" This subparagraph also sets forth nonexhaustive examples of \"good cause,\" the common thread being the risk of prejudice to the defense. For example, good cause exists in \"situations where there is . . . (a) Substantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense\" or \"a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying the other, which satisfies the court that the risk of prejudice is substantial\" (CPL 200.20 [3] [a], [b]). II. Our prohibition on the admission of evidence of crimes and bad acts unrelated to the offense charged guards against conviction based on a defendant's perceived criminal disposition. As relevant to the issue on this appeal, it serves as a judicial safeguard against prejudicial joinder of offenses similar at law but factually unconnected. The concerns underlying that rule, along with the history and purpose of CPL 200.20, confirms that the murder-related counts here should have been tried separately. A. One of our bedrock criminal law principles is that a defendant may not be convicted based on propensity evidence ( see People v Molineux , 168 NY 264 [1901]). A defendant's conviction for an offense must rest solely on the evidence admitted at trial and the factual findings and inferences drawn therefrom. Evidence of other crimes or bad acts may not be admitted to bolster evidence of another crime or to establish a defendant's likelihood of having committed the crime charged because they have a bad character or appear predisposed to criminality ( see id. at 293 [internal quotation marks omitted]). Absent a relevant connection between the offenses, reliance on evidence of a criminal disposition is inherently prejudicial and if admitted, requires reversal of the conviction. \" 'It would be easier to believe a person guilty of one crime if it was known that [they] had committed another of a similar character, or, indeed of any character; but the injustice of such a rule in courts of justice is apparent. It would lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offences to produce conviction for a single one' \"( id. at 292, quoting Coleman v People , 55 NY 81, 90 [1873]). \"Thus, '[w]hen we limit Molineux or other propensity evidence, we do so for policy reasons, due to fear of the jury's 'human tendency' to more readily 'believe in the guilty of an accused person when it is known or suspected that [they have] previously committed a similar crime' \" ( People v Weinstein , 2024 NY Slip Op 02222, at *7 [Ct App Apr. 25, 2024], quoting People v Brewer , 28 NY3d 271 , 276 [2016], quoting People v Ventimiglia , 52 NY2d 350, 359 [1981], and citing Molineux , 168 NY at 313). The exceptions to the bar on propensity evidence share the common characteristic of relevance to the offense prosecuted. Thus, we have identified evidence of motive, intent, impossibility or improbability of mistake or accident, a common plan or scheme, and identity as relevant bases for admission of evidence of other criminal conduct ( see Molineux , 168 NY at 293). Even when evidence of a defendant's criminal propensity is relevant to some other, proper issue, the evidence may only be admitted if \"its probative value exceeds the potential for prejudice resulting to the defendant\" ( see People v Alvino , 71 NY2d 233, 242 [1987]). The Legislature was well aware of this well-established principle and the limited exceptions to the bar against propensity evidence when it introduced the provisions at issue on this appeal ( see Matter of Estate of Youngjohn v Berry Plastics Corp. , 36 NY3d 595 , 606 [2021] [\"(T)he legislative history of a particular enactment must be reviewed in light of the existing decisional law which the (l)egislature is presumed to be familiar with and to the extent it left it unchanged, that it accepted\"]). B. Until 1936, the Code of Criminal Procedure required that an \"indictment must charge but one crime and in one form except that the crime may be charged in separate counts to have been committed by different means; and when the acts complained of may constitute different crimes, such crimes may be charged in separate counts\" ( People v Dimick , 107 NY 13, 31 [1887], citing Code Cr Proc §§ 278, 279). Then, the Legislature enacted a predecessor of today's CPL 200.20. That enactment liberalized the law of joinder, including by providing that \"the court may order\" consolidated trials of \"two or more acts or transactions constituting crimes of the same or a similar character\" (Code Cr Proc § 279 [eff 1936]). In such cases, however, \"the court, in the interest of justice and for good cause shown, may, in its discretion, order that the different charges . . . be tried separately\" ( id. ). Crucially, this liberalization did not displace established principles of criminal law. The Governor and a key proponent supported the 1936 amendment as an \"anti-racketeering bill\" (Letter from Thomas E. Dewey to Charles Poletti, Feb 27, 1936, Bill Jacket, L 1936, ch 328), one that would permit prosecution of \"the separate but inter-related offenses of the single criminal organization\" (Governor's Mem at 2, Bill Jacket, L 1936, ch 328 [quoting Dewey]). Joinder would also provide for the efficient resolution of criminal matters ( see id. ). Consistent with these purposes, the bill's supporters emphasized that it was \"of course, not a new or radical departure in the administration of criminal justice\" ( id. ). Indeed, the bill tracked with minor changes an analogous federal statute, the predecessor to today's Federal Rules of Criminal Procedure 8 and 14. Thus, as the Governor noted, New York's new Section 279 would \"bring[ ] to the state courts a large body of considered judicial decisions from all of the Federal Courts, where the statute ha[d] been in just and successful administration\" for nearly a century ( id. at 2-3). That body of federal case law balanced the administrative benefits of joinder with the concern for undue prejudice against defendants. The leading case at the time was Pointer v United States (151 US 396 [1894]; see People ex rel. Pincus v Adams , 274 NY 447, 454 [1937] [discussing Pointer ]; De Luca v United States , 299 F 741, 743-745 [2d Cir 1924] [same]). There, the United States Supreme Court indicated that if a joint trial of multiple charges risked prejudice to \"the substantial rights of the accused,\" \"the court, according to the established principles of criminal law, can compel\" severance ( Pointer , 151 US at 403). Whether a court abused its discretion by denying severance depended \"on the special circumstances\" of each case ( id. at 402). Pointer itself concerned two charges of murder. \"The indictment showed that the two murders were committed on the same day, in the same county and district, and with the same kind of instrument. These facts alone justified\" the trial court's denial of severance ( id. at 403). And at trial, \"the wisdom of the course pursued by the court became manifest, for it appeared that the two murders were committed at the same place, on the same occasion, and under such circumstances, that the proof in respect to one necessarily threw light upon the other\" ( id. at 404). In short, under the principles adopted by the 1936 amendment to the Code of Criminal Procedure, denial of severance was most appropriate where charges were factually related. Where charges were utterly distinct except in law, a trial court risked abusing its discretion by permitting a joint trial. Subsequent developments reinforce that the Legislature was attentive to this risk. In 1967, the Temporary Commission on Revision of the Penal Law and Criminal Code, known as the Bartlett Commission, proposed to replace the Code of Criminal Procedure. Section 279, however, was largely untouched. The Commission sought [*9] \"solely\" to \"substantially restate[ ]\" and \"give added clarity\" to the 1936 provision (State of New York Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed New York Criminal Procedure Law at 173 [1967]). The Commission explained that \"the proposed draft, like the existing Criminal Code, is not inattentive to the possibility of prejudice when offenses are joined or consolidated because they are 'of the same or a similar character,' \" as in an indictment of \"two separate robberies\" ( id. ). In such cases, the Commission noted that severance might well be appropriate or, perhaps, required. The Commission's draft became what is now CPL 200.20. In 1984, the Legislature amended § 200.20 to encourage severance in appropriate cases. The 1984 amendments, which remain effective today, identified situations in which there exists \"good cause\" to sever counts of an indictment that are similar only in law. One of these is \"when there is . . . [s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense\" (CPL 200.20 [3] & [3] [a]). According to both the State Executive Chamber and the New York City Mayor, this clause codified the rule of People v Forest (50 AD2d 260 [1st Dept 1975]; see Mem of Executive Chamber at 1-2, Bill Jacket L 1984, ch 672; Mem of Mayor of City of New York at 2, Bill Jacket L 1984, ch 672). In Forest , the defendant had been convicted following a joint trial of three counts of robbery ( see Forest , 50 AD2d at 261). For two of those counts, eyewitnesses identified the defendant as the perpetrator; for the third, the victim identified the defendant only from a photo array, and only after first selecting a different person ( see id. ). Even though the robberies all occurred within one month, and even though all involved purse snatchings in the Bronx, the Court held that the trial court abused its discretion by denying severance ( see id. at 261-262). Factual similarities among the counts, although decisive in Pointer , were not enough to justify joinder in Forest . Thus, in the near-century since it first liberalized the joinder rules, the Legislature has never retreated from the established legal principles protecting defendants against undue prejudice. Indeed, it has only reaffirmed them. While offenses similar in nature may be joined, the legislature fully understood that wholly unrelated offenses — those lacking any connection whatsoever other than the prosecution's allegation that the defendant committed the crimes so charged—would be inadmissible under general criminal law principles because of the inherent prejudice to a defendant from propensity evidence. [FN11] [*10] C. Scholars have long warned of the grave risks attending joinder in cases like the one presented on this appeal. In 1980, Judge Friendly noted that CPL 200.20 (2) (c)'s federal analog—the \"same or similar character\" provision in Federal Rule of Criminal Procedure 8(a)—had \"not been met with the favor of commentators\" ( United States v Werner , 620 F2d 922, 927 [2d Cir 1980]). The criticism continues more than forty years later. For example, the American Bar Association's Standard for Criminal Justice states: \"Whenever two or more unrelated offenses\"—that is, offenses not based upon the same conduct, criminal episode, or plan—\"have been joined for trial, the prosecuting attorney or the defendant shall have a right to a severance of the offenses \" (ABA Criminal Justice Standards: Joinder & Severance standard 13-3.1 [emphasis added], available at https://www.americanbar.org/groups/criminal_justice/resources/standards/joinder-severance/). The leading treatise on federal practice and procedure likewise questions \"whether joinder of this type should ever be permitted\" (1A Charles Alan Wright, Arthur R. Miller, & Andrew D. Leipold, Federal Practice & Procedure § 223 [5th ed June 2024 update]). And that text's counterpart on criminal procedure suggests that \"[a]bsent reform\" along the ABA's proposed lines, \"some change in the law (or at least in judicial attitudes) is badly needed\" (5 Wayne R. LaFave, Jerold H. Israel, Nancy J. King, & Orin S. Kerr, Criminal Procedure § 17.1 [f] [4th ed Nov 2024 update]). These concerns are not speculative. In 1989, there already existed empirical literature concerning joinder of offenses, based mostly upon experimental studies (James Farrin, Note, Rethinking Criminal Joinder: An Analysis of the Empirical Research and Its Implications for Justice , 52 L & Contemp Probs, 325, 326 [1989]). That \"empirical data unequivocally show[ed] that the probability of a defendant being convicted significantly increases if offenses are joined rather than tried separately\" ( id. at 332). The effect was stronger still \"when the cases joined were similar as opposed to dissimilar\" ( id. ). Moreover, limiting instructions to juries were \"insufficient to counter the demonstrated prejudicial effects of joinder\" ( id. at 336). More recently, an examination of all federal criminal defendants who stood trial over a five-year period found that \"a defendant's chances of conviction increase by more than 10% if [they] stand[ ] trial on more than one count,\" regardless of whether the defendant stands trial alone or with other defendants (Andrew D. Leipold & Hossein A. Abbasi, The Impact of Joinder and Severance on Federal Criminal Cases: An Empirical Study , 59 Vand L Rev 347, 383-384 [2006]). This enhanced risk of conviction from joinder has profound significance for defendants standing trial—and even for those bargaining with prosecutors before trial ( see Andrew Manuel Crespo, The Hidden Law of Plea Bargaining , 118 Colum L Rev 1303, 1316-1323 [2018]). Our role as New York's high court demands that we confront these concerns. For Judge Friendly, the answer was clear: \"The Rule is what it is; if commentators do not like it, the road for them to seek amendment is open\" ( Werner , 620 F2d at 928). Presumably, the majority views matters similarly. But there is one problem: our rule is not the federal rule. \"In order to prevail,\" the defendant in Werner had to \"show not simply some prejudice but substantial prejudice\" from the failure to sever ( id. ). Federal courts still adhere to that requirement ( see e.g. United States v Lingala , 91 F4th 685, 693 [3d Cir 2024]; United States v Page , 657 F3d 126, 129 [2d Cir 2011]). This Court, however, has never held that a defendant must establish actual prejudice. To the contrary, as the majority acknowledges, we review denial of a defendant's severance motion only for abuse of discretion, considering the risk of prejudice as it existed at the time of the motion ( see majority op at 5; People v Ford , 11 NY3d 875 , 879 [2008]; People v Shapiro , 50 NY2d 747, 756 [1980]). Consequently, we may—indeed, we must—ensure that trial courts exercise their discretion with due regard for the possibility that a joint trial might not be a fair trial. III. Turning to the appeal before us, defendant requested severance on the ground that the evidence in the cases was underwhelming, and, thus, \"the simple 'What are the odds?' factor that defendant couldn't possibly be uninvolved in both cases, create[d] immediate prejudice.\" He also contended that the prosecutor's evidence would be sharply different in each case, given defendant's claims that the roommate died in an accidental fire and that the murder of the female acquaintance was a case of misidentification. Trial courts have \"reasonable latitude\" to grant or deny severance of trials for multiple offenses ( People v Lane , 56 NY2d 1, 8 [1982]). But that latitude is not unlimited. In this case, the trial court erred by denying defendant's request. Presenting evidence of both murders to the same jury presented a substantial risk that the jury would convict based on what it might conclude was his criminal disposition and an equally high risk that the jury [*11] would aggregate the evidence, so that proof of one murder would bolster evidence of the other. The result was that the jury might well convict on insufficient evidence of defendant's guilt on either or both murder counts. Such a prospect is anathema to \"our system of justice\" ( Weinstein , 2024 NY Slip Op 02222, at *1). Several factors, taken together, rendered denial of severance untenable. First, the prosecution conceded that the case against defendant for the murder of the female acquaintance was stronger than that for the murder of the roommate. Evidence of the former murder would be confirmatory of guilt of the latter. The danger of \"conviction by reason of [the charges'] cumulative effect rather than on the strength of the specific evidence regarding each crime\" was precisely the sort of risk CPL 200.20 (3) was enacted to avoid ( Forest , 50 AD2d at 262; see Governor's Mem at 1-2, Bill Jacket, L 1984, ch 672). [FN12] Second, the cases were completely different factually, except for one common feature: defendant knew both victims. As defendant argued in his initial severance motion, the jury could well conclude that it was not coincidence that defendant was the only connection between the two murdered victims. In this respect, this case differs sharply from those where this Court has found no abuse of discretion in denying severance. For example, in People v Ford —relied upon at oral argument by the prosecution—there were \"two successive robberies in May 2004 in elevators of residential buildings on Park Avenue in Manhattan\" (11 NY3d at 876). Third, the crimes are heinous, committed by someone without regard for human life. Indeed, if the jury credited the prosecution's evidence, it could have concluded that the roommate's murder was premeditated. Joinder of offenses is always prejudicial ( see Werner , 620 F2d at 929), but the prejudice is greater when the crimes charged provoke the revulsion of the jury ( see Shapiro , 50 NY2d at 756). Given the understandable human tendency to feel animosity towards the perpetrator of two brutal murders, there was a high risk that the jurors would convict on all counts not because they would find guilt beyond a reasonable doubt based on the evidence specific to each case, but because they would view the cases cumulatively. In other words, viewing the evidence in totality, the jury would conclude that, defendant murdered the victims. Fourth, and finally, the issues were complex. Unlike many cases in which there was no abuse of discretion in denying severance, this was not a trial in which \"the evidence as to each [offense] was short and simple\" ( United States v Lotsch , 102 F2d 35, 36 [2d Cir 1939] [L. Hand, J.]). To the contrary, dozens of witnesses testified over a lengthy trial about matters ranging from municipal apparel to cell phone records to pulmonary edema. If ever jurors were at risk of impermissibly aggregating evidence, it was in this trial. In sum, much as in Shapiro , \"the superficial closeness of the indictments here, resulting largely from a common focus on the same kind of\" violent conduct, \"was likely to eclipse the very fundamental difference between them\" ( Shapiro , 50 NY2d at 756). Thus, \"there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense\" (CPL 200.20 [3] [a]). For the same reason, and contrary to the majority's view, the court's instructions could not eliminate the risk that the jury would convict defendant of both crimes based on the combined strength of the evidence ( cf. majority op at 6-7). We assume that the jury will follow the court's instructions, and here the court told the jury that \"[p]roof on one case must not be considered as proof in the other case. It is your obligation to evaluate the evidence as it applies [*12] or fails to apply to each case separately.\" However, there are cases where instructions are not enough. Even where instructions are \"precise and impeccable,\" they cannot cure an \"overabundance\" of improperly prejudicial evidence ( People v Stanard , 32 NY2d 143, 148 [1973]). This is just such a case. Nor, as the majority suggests, are the jury notes relevant ( cf. majority op at 8 n 4). The propriety of the court's decision on the motion to sever is measured as of the time of the motion, and not based on hindsight. The question is one of potential risk, not of whether an erroneous ruling was vindicated at trial. In any case, the jury notes here did not establish that the jurors cabined the evidence to prevent tainting their deliberations on the counts related to one murder with consideration of evidence related to the other. The notes merely established that the jury referenced the evidence by victim's name. The notes provide no insight into how they considered that evidence and whether they improperly synthesized it to reach their verdict. [FN13] Finally, considerations of judicial economy cannot support affirmance. While trial courts should weigh considerations of efficiency against the defendant's interest, \"compromise of a defendant's fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases\" is intolerable ( Lane , 56 NY2d at 8). Thus, where the risk of undue prejudice becomes sufficiently great, no appeal to judicial economy can justify denying severance. Here, the risk was significant and thus intolerable. IV. The Legislature never intended for joinder in cases like this one. To have done so would indeed have been the \"radical departure\" that liberalized joinder's proponents explicitly disclaimed (Governor's Mem at 2, Bill Jacket, L 1936, ch 328). However, if the judiciary exercises its discretion as broadly as the majority now permits — in contravention of our criminal law principles and notwithstanding the prejudicial effects on defendants — then it is time for the Legislature to step in and take corrective action. Order affirmed. Opinion by Judge Halligan. Judges Garcia, Singas, Cannataro and Troutman concur. Chief Judge Wilson dissents in an opinion. Judge Rivera dissents in a separate opinion. Decided December 19, 2024 Footnotes Footnote 1: During post-trial proceedings, counsel denied participating in the exchange and asserted she was merely present for the comments. Footnote 2: The court instructed as follows: \"Now, you have observed that the People have joined in this single indictment two separate and distinct cases: On or about January 27, 2013; and on or about December 3, 2014. Now, these cases are joined in a single indictment for reasons that do not concern you. The fact that a defendant is charged with one crime constitutes no proof that he committed another crime also charged in a single indictment. You are instructed to segregate and to keep separate in your minds the evidence applicable to each of the cases presented to you. You may not infer guilt on one accusation simply because there is another accusation as well, nor may you make any negative inference because the defendant has been twice accused. You are to vote on each case separately and solely on the basis of the evidence applicable to that case. Proof on one case must not be considered as proof in the other case. It is your obligation to evaluate the evidence as it applies or fails to apply to each case separately. Each instruction on the law must be considered by you as referring to each case separately. You must return a separate decision for each case, and those decisions may be but need not be the same. It is your sworn duty to give separate consideration to each individual case.\" Footnote 3: People v Stanard (32 NY2d 143 [1973]), on which Judge Rivera in dissent relies ( see Rivera, J., dissenting op at 15), does not suggest otherwise. That case had nothing to do with severance, and our fact-specific holding that an instruction would not cure a combination of extensive testimony on unrelated criminal activity and a prosecutor's improper suggestion that the defendant could be held accountable for that conduct ( see Stanard , 32 NY3d at 148) does not bear on whether the jurors here could segregate the proof for the two murders. Footnote 4: The jury notes, which requested a readback of the medical examiner's testimony only as it related to the second victim, and days later, the testimony regarding only the first victim, confirm that the jury did consider separately the proof for each offense. Footnote 5: Molineux has both a common law and a constitutional dimension; our more recent Molineux jurisprudence makes clear that Molineux is grounded in the constitutional right to a fair trial ( e.g. People v Telfair , 41 NY3d 107 , 117 [2023] [\"[C]onsistent with our duty to safeguard the rights of criminal defendants to a fair trial, we have reversed in numerous cases when Molineux evidence was improperly admitted\"]). Footnote 6: The relevant provisions were originally enacted as section 279 of the Code of Criminal Procedure. In early versions of the Criminal Procedure Law, section 279 of the Code became section 100.20. When the new CPL was enacted in 1970, section 279 became CPL 200.20. Footnote 7: Today, Rule 8 (a) of the Federal Rules of Criminal Procedure allows joinder \"if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character , or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan\" (Fed. Rules Crim. Pro., rule 8 [a]). Footnote 8: The 1967 version of CPL 200.20 (2) (c) permitted joinder of multiple \"offenses of the same or a similar character,\" copying section 279. In 1968, that became \"defined by the same or similar statutory provisions and consequently . . . of the same or a similar legal character\" (Bartlett Commission, Proposed New York Criminal Procedure Law § 100.20, at 88 [1968]). In 1969, \"of the same or a similar legal character\" became \"the same or similar in law\" (Bartlett Commission, Proposed New York Criminal Procedure Law § 200.20, at 115 [1969]) Footnote 9: Judicial economy is not unimportant, but it does not allow us to shortchange the right to a fair trial. We have, for example, highlighted the value of efficiency in the context of joinder of defendants for trial. In People v Mahboubian , we were asked to determine whether a joint trial of two defendants accused of jointly orchestrating a \"staged theft of Persian antiquities\" was proper (74 NY2d 174, 180 [1989]). In that context, we held that \"a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses\" ( id. at 183). Our holding in Mahboubian is not relevant here. First, the statutory provisions providing for joinder of defendants were enacted at a different time, through different legislation. Unlike the provisions governing joinder of offenses, which were created in 1936, the provisions governing joinder of defendants were created by the Bartlett Commission in the late 1960s. A staff comment to the Bartlett Commission's 1967 proposed Criminal Procedure Law explained that joinder of defendants was \"not covered by the Criminal Code\" (Bartlett Commission, Staff Notes on Proposed Criminal Procedure Law § 100.40, at 174 [1967]). The legislative history of the offense joinder provisions, as discussed supra , does not support an emphasis on judicial economy. Second, the joinder of multiple defendants presents different risks from the joinder of multiple offenses against a single defendant. While joining multiple defendants together for trial may be highly prejudicial in some circumstances, that is not due to the concerns underlying Molineux , but rather because the defenses of the defendants may be antithetical to each other, such as where one defendant's attorney attempts to impeach the testimony of another defendant ( People v Cardwell , 78 NY2d 996, 998 [1991]). Footnote 10: The Bartlett Commission also modified CPL 200.20 (2) (c) by adding the phrase \"even though not joinable pursuant to paragraph (b).\" This change does not alter the meaning of the good cause provision, which the Commission imported without modification. Footnote 11: Evidence concerning one criminal transaction is often inadmissible in a trial of another criminal transaction, even where there is some alleged factual connection between them ( see e.g. People v Weinstein , 2024 NY Slip Op 02222, at *8 [Ct App Apr. 25, 2024]). In such cases, joinder would be impermissible under CPL 200.20 (2) (b), but permissible under CPL 200.20 (2) (c) ( see e.g. People v Adames , 42 AD3d 328 , 329 [1st Dept 2007]). In concluding as much, I depart from the Chief Judge ( see Wilson, Ch J, concurring op at 2). Requiring separate trials for charges with no factual connection vindicates the Legislature's choice to expand joinder beyond Molineux 's strict terms, while also respecting its decision to preserve the longstanding principles embodied in that case. If, as the majority suggests, \"joinder of factually unrelated offenses does not necessarily present a greater risk of prejudice than joinder of factually related offenses\" (majority op at 9), that is reason to grant severance in some cases involving the latter; it is no reason to abandon this Court's role in supervising trial courts' exercises of discretion. Footnote 12: The majority's discussion of this factor is puzzling. If the majority means that neither conviction was against the weight of the evidence, that is a judgment that this Court lacks authority to render in this case ( see People v Danielson , 9 NY3d 342 , 349 [2007]). More fundamentally, the majority appears to impose a prejudice requirement where none exists. A defendant's request for severance \"must be judged in the context of the . . . circumstances against which it is made\" ( Shapiro , 50 NY2d at 757). This Court's retrospective analysis of the trial evidence has no place in assessing whether the trial court abused its discretion by denying a pretrial severance motion. The majority's additional observation that CPL 200.20(3)(a) \"provides for severance if the jury cannot segregate proof\" and the court made no such finding ( see majority op at 9), further illuminates the error below. The court simply ignored the fundamental precept of the Molineux rule: propensity evidence cannot be segregated from evidence of the charged offense because of the jurors' natural and human tendency to bolster or disregard the weakness of the prosecution's evidence and find guilt based upon the defendant's criminal past. Footnote 13: The majority fails to identify any factual similarity between the Appellate Division cases it cites and the underlying facts of defendant's prosecution ( see majority op at 8). The majority's silence emphasizes the outlier status of the joinder of the counts here and why the court abused its discretion by denying severance. In People v Bonner , the evidence established defendant's common \"motive,\" \"modus operandi,\" and \"common scheme of using physical abuse to instill fear and obedience in the prostitutes who worked for him\" (94 AD3d 1500, 1501 [4th Dept 2012]). In People v Perez , the counts were joinable under CPL 200.20 (2) (b), \"on the basis of overlapping evidence . . . , especially with regard to defendant's confessions and their surrounding circumstances\" (47 AD3d 409, 411 [1st Dept 2008]; see also Perez v Conway , 09 CIV. 5173, 2011 WL 1044607, at *4 [SDNY Mar. 18, 2011] [\"While (defendant) initially told police that two drug-dealers killed Drakeford and that he had only helped disposed of her body, he admitted that his tale was a lie and confessed that he had killed both Pollard and Drakeford in later videotaped interviews\"]). In People v Adames (42 AD3d 328 [1st Dept 2007]) the prosecution sought to link both murder counts to defendant's involvement in the narcotics trade ( see generally Brief for Appellant in Adames , 42 AD3d, *46-64; Brief for Respondent in Adames , 42 AD3d, *40-53). And in People v Oliveira , \"the evidence of guilt as to both incidents was overwhelming\" and defendant's \"proposed testimony would have opened the door to evidence of the crimes charged in the second incident\" (2 AD3d 122, 123 [1st Dept 2003]; see also Oliveira v Phillips , 05 CIV. 564 (SAS), 2007 WL 2890211 [SDNY Sept. 28, 2007]). These cases illustrate judicial recognition of the need for some relevant connection between the charges. "
},
{
"from": "gpt",
"value": "Court rejected defendant's contention that his motion to sever the counts\nrelating to each of the two victims should have been granted. Defendant\nacknowledged that CPL 200.20 (2) (c) authorized joinder in the first\ninstance of the counts relating to each of the 2 murders, and although the 2\ngrounds for severance found in CPL 220.20 (3) are not exclusive, he\nfailed to otherwise demonstrate good cause for a severance."
}
]
|
2024.03624 | [
{
"from": "human",
"value": "Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Jesmer 2024 NY Slip Op 03624 [229 AD3d 1112] July 3, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Gregory Jesmer, Appellant. Sarah S. Holt, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Martin P. McCarthy, II, of counsel), for respondent. Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), rendered March 8, 2019. The judgment convicted defendant upon a jury verdict of murder in the second degree and endangering the welfare of a child. It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25 [1]) and endangering the welfare of a child (§ 260.10 [1]). Defendant's conviction of the murder count stems from his conduct in intentionally killing a 101-year-old woman who lived in his apartment building. The victim was strangled and stabbed more than 30 times with a kitchen knife. His conviction of the endangering the welfare of a child (EWC) count stems from his conduct in offering a 13-year-old girl money in exchange for coming to his apartment. The crime of EWC was committed on the same day that the homicide victim's body was found, and the police questioned defendant on both charges during the same interrogation. Defendant's contention that his conviction of EWC is not supported by legally sufficient evidence is preserved only in part ( see People v Gray , 86 NY2d 10, 19 [1995]) and, in any event, is without merit ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). We conclude that, viewing the evidence in the light most favorable to the People ( see People v Contes , 60 NY2d 620, 621 [1983]), \" 'there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt' \" ( People v Danielson , 9 NY3d 342 , 349 [2007]; see People v Babb , 186 AD3d 1058 , 1058 [4th Dept 2020], lv denied 36 NY3d 1049 [2021]). In particular, we conclude that there is legally sufficient evidence establishing that, by offering a large sum of money to a 13-year-old girl he met on a bus if she agreed to go back to his apartment, defendant engaged in conduct that was likely to be injurious to the child's \"physical, mental or moral welfare,\" even though his efforts to lure the child to his apartment were unsuccessful inasmuch as an onlooker observed defendant talking to the seemingly distressed child and called the police (Penal Law § 260.10 [1]). Furthermore, viewing the evidence in light of the elements of murder in the second degree and EWC as charged to the jury ( see Danielson , 9 NY3d at 349), we conclude that, contrary to defendant's contention, the verdict with respect to both counts is not against the weight of the evidence ( see generally Bleakley , 69 NY2d at 495). Indeed, based on our independent review of the evidence ( see People v Delamota , 18 NY3d 107 , 116-117 [2011]), we conclude that a different verdict would have been unreasonable ( see People v Muhammad , 204 AD3d 1402 , 1403 [4th Dept 2022], lv denied 38 NY3d 1073 [2022]; People v Peters , 90 AD3d 1507 , 1508 [4th Dept 2011], lv denied 18 NY3d 996 [2012]; see generally Bleakley , 69 NY2d at 495). [*2] Defendant further contends that County Court erred in refusing to sever the murder and EWC counts. We reject that contention. The court properly determined that the two offenses were joinable pursuant to CPL 200.20 (2) (b), which allows joinder of offenses based upon different criminal transactions where, as here, \"such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first.\" Contrary to defendant's contention, evidence relating to the EWC charge was relevant and necessary to complete the narrative of events that led to defendant's initial arrest and to the police's initial suspicions that defendant was involved in the murder ( see generally People v Hall , 194 AD3d 1372 , 1373 [4th Dept 2021], lv denied 37 NY3d 972 [2021]; People v Blocker , 128 AD3d 1483 , 1484 [4th Dept 2015], lv denied 26 NY3d 926 [2015]; People v Childs , 8 AD3d 116 , 116 [1st Dept 2004], lv denied 3 NY3d 672 [2004]). Indeed, without the testimony relating to the EWC charge, the jury would have had no way of knowing why defendant was initially arrested. Because the two crimes were properly joined in one indictment under CPL 200.20 (2) (b), the court lacked statutory authority to sever them ( see People v Bongarzone , 69 NY2d 892, 895 [1987]; People v Cornell , 17 AD3d 1010 , 1011 [4th Dept 2005], lv denied 5 NY3d 805 [2005]). Defendant's sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment. Present—Lindley, J.P., Curran, Ogden, Keane and Hannah, JJ."
},
{
"from": "gpt",
"value": "County\nCourt properly determined that two offenses - Murder and Endangering the\nWelfare of a Child were joinable pursuant to CPL 200.20 (2) (b).\nAlthough different criminal transactions,\n\"such offenses, or the criminal\ntransactions underlying them, were of such nature that either proof of the\nfirst offense would be material and admissible as evidence in chief upon a\ntrial of the second, or proof of the second would be material and\nadmissible as evidence in chief upon a trial of the first.\n\" Evidence relating\nto the Endangering charge was relevant and necessary to complete the\nnarrative of events that led to defendant's initial arrest and to the police's\ninitial suspicions that defendant was also involved in the murder that took\nplace in the same building because without the testimony relating to the\nEWC charge, the jury would have had no way of knowing why defendant\nwas initially arrested."
}
]
|
2024.04402 | [
{
"from": "human",
"value": "Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Ortiz 2024 NY Slip Op 04402 [230 AD3d 1163] September 11, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 13, 2024 [*1] The People of the State of New York, Respondent, v Javier Ortiz, Appellant. Patricia Pazner, New York, NY (Denise A. Corsi of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Avshalom Yotam of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Kings County (Evelyn Laporte, J.), rendered April 17, 2017, convicting him of murder in the second degree, manslaughter in the first degree, and robbery in the first degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Following a jury trial, the defendant was convicted, under an acting-in-concert theory, of murder in the second degree, manslaughter in the first degree, and robbery in the first degree, arising out of an incident in Brooklyn in September 2014, wherein the defendant, together with others, robbed two victims, killing one and seriously injuring the other. Viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15 [5]; People v Danielson , 9 NY3d 342 , 348 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383 [2004]; People v Bleakley , 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero , 7 NY3d 633 [2006]). The defendant's contention that the Supreme Court should have granted his motion for a severance is without merit. Here, the charges against the defendant and the codefendants were properly joined because they were part of a common scheme or plan ( see CPL 200.40 [1]; People v Montello , 197 AD3d 575 , 577 [2021]; People v Wright , 166 AD3d 1022 , 1023-1024 [2018]). Moreover, the proof against the defendant and the codefendants was supplied by the same witnesses ( see People v Montello , 197 AD3d at 577; People v Wallace , 261 AD2d 493, 493 [1999]), and the defendant's defense was not antagonistic to that of the codefendants ( see People v Mahboubian , 74 NY2d 174, 186 [1989]). The defendant failed to preserve for appellate review his contention that the Supreme Court's Sandoval rulings ( see People v Sandoval , 34 NY2d 371 [1974]) violated his state and federal right to a fair trial, to testify, and to present a defense ( see CPL 470.05 [2]). In any event, the court properly determined, after a Sandoval hearing, that if the defendant took the stand, the prosecutor could question him about his status as an undocumented immigrant ( see People v Medina , 281 AD2d [*2] 563, 564 [2001]; People v Caicedo 173 AD2d 630, 631 [1991]). Although the court should have denied the People's application to question the defendant as to his gang affiliation if he were to testify ( see People v Kennedy , 101 AD3d 1045 , 1046 [2012]; People v Sellan , 143 AD2d 690, 691 [1988]), under the circumstances of this case, the error in permitting the questioning was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his convictions ( see People v Crimmins , 36 NY2d 230, 241-242 [1975]; People v Kennedy , 101 AD3d at 1046). The defendant failed to preserve for appellate review his challenge to the admission of photographs of the decedent ( see CPL 470.05 [2]), except as to his challenge to the admission of the autopsy photographs of the decedent ( see id .). In any event, the challenged photographs were neither excessively gruesome nor introduced solely for the purpose of arousing the jurors' passions and prejudicing the defendant ( see People v Fletcher , 84 AD3d 1265 , 1266 [2011]; People v Rivera , 74 AD3d 993 , 994 [2010]). Since those photographs were relevant to help illustrate and corroborate the testimony of the medical examiner regarding the cause of death ( see People v Fletcher , 84 AD3d at 1266; People v Prowse , 60 AD3d 703 , 704 [2009]) and to prove the defendant's intent ( see People v Pobliner , 32 NY2d 356, 369 [1973]; People v Allan , 41 AD3d 727 , 728 [2007]), they were properly admitted into evidence. The defendant's challenge to certain remarks made by the prosecutor during his summation are unpreserved for appellate review ( see CPL 470.05 [2]). In any event, the challenged remarks constituted fair comment on the evidence and the inferences to be drawn therefrom ( see People v Fuhrtz , 115 AD3d 760 , 760 [2014]; People v Birot , 99 AD3d 933 , 933 [2012]) or were fair response to the comments of defense counsel during summation ( see People v Long , 222 AD3d 881 , 882 [2023]; People v Fuhrtz , 115 AD3d at 760). To the extent that any of the prosecutor's remarks were improper, the statements \" 'were not so flagrant or pervasive' as to have deprived the defendant of a fair trial\" ( People v Long , 222 AD3d at 882, quoting People v Almonte , 23 AD3d 392 , 394 [2005]). The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 [1982]). Duffy, J.P., Wooten, Dowling and Wan, JJ., concur."
},
{
"from": "gpt",
"value": "Defendants\nwere properly joined and severance properly denied because they were\npart of a common scheme or plan (CPL 200.41[1]); the proof was supplied\nby the same witnesses; and there were no antagonistic defenses."
}
]
|
2024.06358 | [
{
"from": "human",
"value": "Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Ford 2024 NY Slip Op 06358 [233 AD3d 891] December 18, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Tyrone Ford, Appellant. Patricia Pazner, New York, NY (Yvonne Shivers of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Thomas B. Litsky and James Joseph Gandia of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Mario F. Mattei, J.), rendered November 18, 2019, convicting him of criminal sale of a controlled substance in the third degree (13 counts), upon a jury verdict, and imposing sentence. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the convictions under counts 2, 5, and 11 of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed. On October 26, 2018, after a long-term investigation by the Staten Island Narcotics Bureau, the defendant was indicted on, inter alia, 16 counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39). As charged in the indictment, on April 26, 2017, May 17, 2017, and September 29, 2017, the defendant allegedly sold a mixture of heroin and fentanyl to an undercover officer. Counts 1, 4, and 10 of the indictment were based on the defendant's alleged sale of heroin on April 26, 2017, May 17, 2017, and September 29, 2017, respectively, while counts 2, 5, and 11 were based on the defendant's alleged sale of fentanyl on those same dates, respectively. The defendant's contention that the counts 2, 5, and 11 are multiplicitous of counts 1, 4, and 10 is unpreserved for appellate review ( see People v Cruz , 96 NY2d 857, 857 [2001]; People v Edmondson , 191 AD3d 1015 , 1018 [2021]). Nevertheless, under the circumstances presented here, we review this contention in the exercise of our interest of justice jurisdiction ( see People v Edmondson , 191 AD3d at 1018; People v Smalls , 81 AD3d 860 , 861 [2011]). \"An indictment is multiplicitous when a single offense is charged in more than one count\" ( People v Warren , 198 AD3d 934 , 935 [2021]; see People v Young , 141 AD3d 551 , 553 [2016]). \" 'Multiplicity does not exist where each count requires proof of an additional fact that the other does not' or where 'a conviction on one count would not be inconsistent with acquittal on the other' \" ( People v Edmondson , 191 AD3d at 1018, quoting People v Saunders , 290 AD2d 461, 463 [2002]). Here, the record reflects that the jury charges regarding counts 1, 4, and 10 of the indictment were essentially identical to the jury charges regarding counts 2, 5, and 11 of the indictment, respectively ( see id. ; People v Martin , 153 AD2d 807, 808 [1989]). Because Penal Law § 220.39 (1) criminalizes the [*2] knowing sale of a narcotic drug and treats all narcotic drugs interchangeably, a conviction on one count of criminal sale of a controlled substance in the third degree would be inconsistent with an acquittal on another count of criminal sale of a controlled substance in the third degree where, as here, the defendant allegedly sold a mixture of heroin and fentanyl ( see People v Edmondson , 191 AD3d at 1018; People v Miller , 15 AD3d 265 , 265 [2005]; People v Martin , 153 AD2d at 808). As such, those charges were multiplicitous ( see People v Edmondson , 191 AD3d at 1018). Although the dismissal of the multiplicitous counts will not affect the duration of the defendant's sentence of imprisonment, it is nevertheless appropriate in this case to dismiss counts 2, 5, and 11 in consideration of the stigma attached to the redundant convictions ( see People v Alonzo , 16 NY3d 267 , 269 [2011]; People v Edmondson , 191 AD3d at 1018). The defendant contends that evidence of certain uncharged crimes, with regard to which he contends the People should have requested a Ventimiglia hearing ( see People v Ventimiglia , 52 NY2d 350, 362 [1981]), was erroneously admitted. This contention is unpreserved for appellate review, as the defendant neither objected to the testimony when it was adduced nor requested a Ventimiglia ruling at that time, when the Supreme Court still could have conducted a hearing ( see CPL 470.05 [2]; People v Miller , 229 AD3d 724 , 725 [2024]). In any event, this contention is without merit ( see People v Miller , 229 AD3d at 725). The defendant further contends that the verdict convicting him under count 14 of the indictment was against the weight of the evidence. \"[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence[,] and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt\" ( People v Danielson , 9 NY3d 342 , 348 [2007]). Great deference is accorded to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410 [2004]; People v Bleakley , 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt under count 14 of the indictment was not against the weight of the evidence ( see People v Romero , 7 NY3d 633 , 646 [2006]). The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80, 86 [1982]). In light of our determination, we need not reach the defendant's contentions that his convictions under counts 2, 5, and 11 were based on legally insufficient evidence or that the guilty verdicts under those counts were against the weight of the evidence. The defendant's remaining contention is without merit. Maltese, J.P., Genovesi, Wan and Golia, JJ., concur."
},
{
"from": "gpt",
"value": "\"An\nindictment is multiplicitous when a single offense is charged in more than\none count\" (People v Warren, 198 AD3d 934). Multiplicity does not exist\nwhere each count requires proof of an additional fact that the other does\nnot' or where 'a conviction on one count would not be inconsistent with\nacquittal on the other (People v. Edmondson, 191 AD3d 1015). Because\nPenal Law § 220.39(1) criminalizes the knowing sale of a narcotic drug\nand treats all narcotic drugs interchangeably, a conviction on one count of\ncriminal sale of a controlled substance in the third degree would be inconsistent with an acquittal on another count of criminal sale of a\ncontrolled substance in the third degree where, as here, the defendant\nallegedly sold a mixture of heroin and fentanyl."
}
]
|
2024.06077 | [
{
"from": "human",
"value": "Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Ashcroft 2024 NY Slip Op 06077 [233 AD3d 1080] December 5, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] (December 5, 2024) The People of the State of New York, Respondent, v Eschell Ashcroft, Appellant. Craig S. Leeds, Albany, for appellant. Emmanuel C. Nneji, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent. Egan Jr., J.P. Appeal from a judgment of the County Court of Ulster County (Donald A. Williams, J.), rendered June 1, 2018, upon a verdict convicting defendant of the crime of aggravated harassment of an employee by an incarcerated individual. On November 26, 2016, defendant was serving a prison sentence at the Eastern NY Correctional Facility in the Town of Wawarsing, Ulster County and was housed alone in a cell in the Special Housing Unit. That morning, defendant papered over the window to his cell and a feed-up hatch used to provide food to him and refused to respond to correction officers, preventing them from checking in on him and ensuring his safety. At approximately 10:36 a.m., three officers went to the door of defendant's cell, with one knocking on the door and the others crouching near the leg iron hatch on the door in an effort to open it and try and see what was going on inside. While the officers were crouching near the hatch, a liquid was ejected from it and hit the left side of one of them. The officers all believed, and testing later confirmed, that the liquid was urine. As a result of the incident, defendant was charged in an indictment with aggravated harassment of an employee by an incarcerated individual ( see Penal Law former § 240.32). [FN1] Defendant thereafter engaged in motion practice that included unsuccessful applications to dismiss the indictment and for suppression and/or preclusion of statements he made after the incident occurred. The matter then proceeded to a jury trial, at the conclusion of which defendant was found guilty as charged. County Court sentenced defendant, as a second felony offender, to a prison term of 2 1/2 to 5 years that would run consecutively to the prison sentence he was already serving. Defendant appeals. We affirm. At the outset, defendant's contentions that the verdict is not supported by the evidence are meritless. The three correction officers who were outside of the cell solely occupied by defendant when the incident occurred all testified. Their testimony, which was fully corroborated by video footage from nearby security cameras, reflected that a liquid was thrown out of the cell and hit one of the officers crouching near the leg iron hatch. The testimony and video footage indicated that a loud bang was heard from inside the cell around the time that the liquid was thrown out, and the video footage shows both the officers' reaction to the liquid being tossed and the liquid itself on the floor outside of the cell. The video footage and testimony showed that the officers walked away to obtain care for the officer who had been struck, while defendant then began screaming \"a lot of obscenities.\" The witnesses also included a correction sergeant who was in the area about two hours after the incident and testified to overhearing defendant talking to another incarcerated individual through his cell window about \"thr[owing] piss on th[e] bitch ass\" officer who had been looking through the hatch earlier. The three [*2] officers present for the incident all testified that they believed that the officer had been hit by urine based upon its odor, and a forensic scientist testified that she tested clippings from that officer's shirt and obtained positive results for the presence of urine. We have no difficulty concluding that, to the extent that the issue is preserved, the foregoing proof is legally sufficient to establish that defendant threw urine onto the officer with the requisite \"intent to harass, annoy, threaten or alarm a person in a [correctional] facility whom he . . . knows or reasonably should know to be an employee of such facility\" (Penal Law § 240.32; see People v Banch , 198 AD3d 1186 , 1189 [3d Dept 2021], lv denied 37 NY3d 1144 [2021]). The jury credited that extensive evidence of guilt over defendant's denials of having thrown any liquid and the lack of proof definitively tying him to DNA on the officer's urine-soaked shirt. [FN2] Viewing the evidence in a neutral light and deferring to the jury's assessment of credibility, we are further satisfied that the verdict is supported by the weight of the evidence in all respects ( see People v Banch , 198 AD3d at 1189; People v Smith , 96 AD3d 1088 , 1088-1089 [3d Dept 2012], lv denied 20 NY3d 936 [2012]). Next, we reject defendant's claim that the indictment was legally insufficient on its face. As County Court noted, the indictment did not explicitly state all of the elements of the charged offense because it failed to allege that defendant was \"[a]n inmate\" when he engaged in the charged conduct (Penal Law former § 240.32). The indictment did explicitly name Penal Law § 240.32 as the crime charged, however, and that incorporation by reference to the statute sufficiently apprised defendant of the charge to render the indictment jurisdictionally valid ( see People v D'Angelo , 98 NY2d 733, 734-735 [2002]; People v Wheeler , 216 AD3d 1314 , 1316 [3d Dept 2023], lv denied 40 NY3d 1082 [2023]). County Court therefore acted properly in denying defendant's motion to dismiss the indictment on jurisdictional grounds and granting the People leave to amend the indictment to correct the omission ( see CPL 200.70 [1]). Turning to the Sandoval compromise rendered by County Court, it barred the People from questioning defendant about 1991 and 2001 convictions should he testify. County Court did permit cross-examination regarding some of defendant's other prior convictions, however, upon the ground that they called his credibility into question by showing his willingness to place his own interests above those of society. The court specifically allowed inquiry regarding the existence, but not the details, of an unnamed 2005 felony conviction, and broader inquiry regarding the existence and underlying facts of a 2003 conviction for criminal sale of a controlled substance in the third degree, a 2002 conviction for intent to obtain transportation without paying, and a 1993 conviction for attempted robbery in the second degree. County [*3] Court properly balanced the probative value of the 2005 conviction against the serious potential for undue prejudice—caused by the fact that the conviction was for the same offense charged here and arose out of similar conduct—by precluding the People from referencing the name of the offense or the underlying facts. County Court was further free to, and did, reject defendant's contention that the 1993, 2002, 2003 and 2005 convictions were too remote in time for the simple reason that \"defendant was incarcerated for substantial periods\" throughout the 1990s and 2000s and had been imprisoned continuously since 2002 ( People v Kirton , 36 AD3d 1011 , 1013 [3d Dept 2007], lv denied 8 NY3d 947 [2007]). Under those circumstances, we are satisfied that \"the court's compromise was a provident exercise of the court's discretion inasmuch as it reflected a measured balance of the probative value and limited the potential prejudicial effect of the evidence in question\" ( People v Lloyd , 118 AD3d 1117 , 1122 [3d Dept 2014], lv denied 25 NY3d 951 [2015]; see People v Gilliam , 36 AD3d 1151 , 1153 [3d Dept 2007], lv denied 8 NY3d 946 [2007]). Defendant further suggests that County Court erred in declining to suppress oral statements he made around the time of the incident that were captured on surveillance video footage of the hall outside of his cell and in failing to preclude the later statements he made to another incarcerated individual that were overheard by a correction sergeant. With regard to the recorded statements, County Court credited testimony at the suppression hearing that defendant and other incarcerated individuals in the Special Housing Unit were notified that they were under \"constant surveillance\" and that security cameras were \"record[ing] essentially, everything\" on the unit. As defendant had been warned that the area was \"being monitored and recorded,\" County Court properly determined that he had no reasonable expectation of privacy in any communications that might be picked up by nearby security cameras so as to implicate the protections of the Fourth Amendment ( People v Diaz , 33 NY3d 92 , 99-100 [2019], cert denied 589 US &mdash, 140 S Ct 394 [2019]; see Telesford v Annucci , 693 Fed Appx 1, 2-3 [2d Cir 2017]; People v Russ , 162 AD3d 1306 , 1306-1307 [3d Dept 2018]). Defendant's related contention that the recording and disclosure of his statements separately constituted a due process violation is without merit ( see e.g. People v Quinn , 210 AD3d 1284 , 1286-1287 [3d Dept 2022], lv denied 39 NY3d 1079 [2023]). Defendant similarly had no reasonable expectation of privacy with regard to statements he made through his cell window to another incarcerated individual, and County Court correctly concluded that the People were not obliged to give notice of their intent to use that statement pursuant to CPL 710.30 because it was only overheard by a passing correction sergeant and \"was not made 'to a public servant' \" ( People v Cole , 24 AD3d 1021 , 1025 [3d [*4] Dept 2005], lv denied 6 NY3d 832 [2006], quoting CPL 710.30 [1] [a]; see People v Phoenix , 115 AD3d 1058 , 1062-1063 [3d Dept 2014], lv denied 23 NY3d 1024 [2014]). Defendant's contentions relating to the conduct of the trial do not demand extended discussion. County Court appropriately directed that defendant be restrained during the trial—which the People demonstrated was necessary in this case because of defendant's extensive disciplinary history and penchant for assaultive and disruptive behavior while imprisoned—while minimizing the potential for prejudice to defendant by placing skirts around the courtroom tables to obscure his restraints and giving a cautionary instruction to the jury ( see People v Alexander , 127 AD3d 1429 , 1432 [3d Dept 2015], lv denied 25 NY3d 1197 [2015]; People v Stokes , 290 AD2d 71, 74 [3d Dept 2002], lv denied 97 NY2d 762 [2002], cert denied 537 US 859 [2002]). Defendant's claims of prosecutorial misconduct arising out of comments made by the People during summation are unpreserved given his failure to lodge a timely objection to them ( see People v Paige , 211 AD3d 1333 , 1337 [3d Dept 2022], lv denied 39 NY3d 1143 [2023]; People v Morton , 198 AD3d 1176 , 1180 [3d Dept 2021], lv denied 37 NY3d 1163 [2022]). In any event, while some of the People's remarks in summation would have been better left unsaid, we cannot say that they were part of \"a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive defendant of a fair trial\" and require reversal ( People v Lewis , 224 AD3d 1143 , 1153 [3d Dept 2024], lv denied 42 NY3d 939 [2024]). Defendant's various contentions regarding the jury charge and the handling of notes from the jury are similarly unpreserved and are, in any event, without merit ( see People v Abussalam , 196 AD3d 1000 , 1009 [3d Dept 2021], lv denied 37 NY3d 1144 [2021]; People v Smith , 193 AD3d 1260 , 1267 [3d Dept 2021], lv denied 37 NY3d 968 [2021]). As for defendant's remaining complaints, although he cites an impressive array of perceived flaws in the performance of trial counsel, we cannot say that he received the ineffective assistance of counsel in any respect. To the contrary, our review of the record as a whole confirms that counsel provided meaningful representation in a difficult case where there was overwhelming testimonial, video and forensic evidence of defendant's guilt ( see People v Rashid , 166 AD3d 1382 , 1385 [3d Dept 2018], lv denied 32 NY3d 1208 [2019]). Finally, assuming, without deciding, that defendant's challenge to the sentence remains live despite his release from prison due to the apparent expiration of that sentence ( but see People v Cotto , 218 AD3d 1021 , 1026 [3d Dept 2023], lv denied 40 NY3d 1039 [2023]), we are unpersuaded that the sentence was unduly harsh or severe ( see People v Banch , 198 AD3d at 1190). Clark, Ceresia, Powers and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: The offense originally referenced inmates as opposed to incarcerated individuals but, during the pendency of this appeal, was renamed aggravated harassment of an employee by an incarcerated individual ( see Penal Law § 240.32, as amended by L 2021, ch 322, § 106). Footnote 2: The forensic scientist who testified for the People stated that she did not test clippings from the officer's shirt for DNA because urine is generally not a good source for DNA, but defendant's expert was able to recover genetic material from the officer's shirt and conduct DNA testing. She could not identify the major contributor to DNA found on the shirt clippings—an unsurprising development since she did not have a DNA sample from the officer who had been wearing the shirt—and her testing to identify a second, minor contributor of DNA material on the shirt was inconclusive. "
},
{
"from": "gpt",
"value": "Indictment charging defendant with Aggravated Harassment of an\nEmployee by an Incarcerated Individual did not allege that defendant was\nan inmate, Although the indictment did not allege that defendant was an\ninmate, it did explicitly state defendant's conduct violated Penal Law §\n240.32. That incorporation by reference adequately informed defendant of\nthe charge and rendered the indictment jurisdictionally sufficient. "
}
]
|
2024.03234 | [
{
"from": "human",
"value": "Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Moore 2024 NY Slip Op 03234 [228 AD3d 491] June 13, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 31, 2024 [*1] The People of the State of New York, Respondent, v Robert Moore, Appellant. Caprice R. Jenerson, Office of the Appellate Defender, New York (Samuel Steinbock-Pratt of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Christian Rose of counsel), for respondent. Judgment, Supreme Court, New York County (Juan Merchan, J.), rendered January 7, 2020, as amended February 26, 2020, convicting defendant, after a jury trial, of persistent sexual abuse, and sentencing him, as a persistent violent felony offender, to a term of 4 years to life, unanimously modified, on the law, to vacate the sentence and to remand for further sentencing proceedings, and otherwise affirmed. The indictment was jurisdictionally valid because it unmistakably specified the precise underlying misdemeanor offense on which the charge of persistent sexual abuse (Penal Law § 130.53) was predicated \"by stating the definition of the offense\" ( People v Saenger , 39 NY3d 433 , 440 [2023]). Specifically, the second count of the indictment, in charging defendant with persistent sexual abuse, states that he \"subjected a person known to the Grand Jury to sexual contact, to wit , placing his hand on said person's buttocks, without her consent.\" Of the three misdemeanors eligible to support a felony charge of persistent sexual abuse—forcible touching (Penal Law § 130.52), sexual abuse in the third degree (Penal Law § 130.55), and sexual abuse in the second degree (Penal Law § 130.60)—only sexual abuse in the third degree fits the conduct described by the indictment (\"subject[ing] a person . . . to sexual contact . . . without her consent\"). Penal Law § 130.55 defines sexual abuse in the third degree as \"subject[ing] another person to sexual contact without the latter's consent,\" and this is precisely the conduct with which the indictment charges defendant. Although the other two potentially qualifying misdemeanors include unconsented sexual contact as an element, each of those offenses has additional elements not mentioned in the indictment. Forcible touching is defined, in pertinent part, as \"forcibly touch[ing] the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire\" (Penal Law § 130.52 [1]) or \"subject[ing] another person to sexual contact for the purpose of gratifying the actor's sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car\" (Penal Law § 130.52 [2]). Sexual abuse in the second degree is defined as \"subject[ing] another person to sexual contact . . . when such other person is . . . [i]ncapable of consent by reason of some factor other than being less than seventeen years old; or . . . [l]ess than fourteen years old\" (Penal Law § 130.60). Accordingly, the indictment specifically accused defendant of committing one of the three qualifying offenses for persistent sexual abuse, namely, sexual abuse in the third degree. In Saenger , the Court of Appeals approved the manner in which the instant indictment identifies the underlying misdemeanor offense supporting the felony charge. Saenger , like this case, involved a felony charge (aggravated family offense [Penal [*2] Law § 240.75]) based on a misdemeanor offense committed by a defendant who, at the time of the commission of the offense, had a specified criminal record. While the Court of Appeals found that the Saenger indictment fell short because it alleged only that the defendant had \"committed an offense specified in subdivision two of section 240.75 of the Penal Law\" (39 NY3d at 436 [internal quotation marks omitted]), the Court noted: \"The People may ensure the facial validity of an indictment charging a defendant with aggravated family offense simply by specifying the alleged underlying misdemeanor offense, either by incorporating the underlying offense by section number or by stating the definition of the offense \" ( id. at 440 [emphasis added]). Immediately after the above-quoted statement, the Court of Appeals cited with approval a number of decisions by this Court in which we affirmed convictions based on indictments containing charging language similar to the indictment in this case ( see People v Rosa , 164 AD3d 1182 , 1183-1184 [1st Dept 2018] [the indictment \"unmistakably identified the specified offense . . . defendant was alleged to have committed by stating its definition, albeit without identifying it by section number\" (internal quotation marks omitted)], lv denied 32 NY3d 1114 [2018]; People v Brooks , 159 AD3d 401 , 401 [1st Dept 2018] [same], lv denied 31 NY3d 1079 [2018]; People v Parrilla , 145 AD3d 629, 629-630 [1st Dept 2016] [same], lv denied 29 NY3d 951 [2017]). What emerges from Saenger and the precedents cited with approval therein is that, in a case where the defendant's prior convictions elevate a misdemeanor charge to a felony, there is no requirement that the indictment identify the underlying misdemeanor offense by section or by the title in the caption of the section. Rather, it suffices for the indictment to use charging language that tracks the statutory definition of the underlying misdemeanor offense. This is precisely what the indictment before us has done. Accordingly, the indictment complied with the requirement to provide defendant with \"notice of which of the qualifying misdemeanor offenses [referred to in the persistent sexual abuse statute] he was alleged to have committed\" ( Saenger , 39 NY3d at 440). [FN*] Finally, because the People concede that defendant was improperly adjudicated as a mandatory persistent violent offender, we vacate the sentence and remand to Supreme Court for further proceedings. Concur—Webber, J.P., Friedman, González, Rosado, Michael, JJ. Footnotes Footnote *: Saenger calls into question our decision in People v Lacy (216 AD3d 439 [1st Dept 2023], lv denied 40 NY3d 1081 [2023]), which was decided two weeks before Saenger . "
},
{
"from": "gpt",
"value": "\"The\nindictment was jurisdictionally valid because it unmistakably specified the\nprecise underlying misdemeanor offense on which the charge of persistent\nsexual abuse (Penal Law § 130.53) was predicated 'by stating the\ndefinition of the offense' (People v Saenger, 39 NY3d 433, 440 [2023]).\n\"\nThat count of the indictment charged defendant as having \"subjected a\nperson known to the Grand Jury to sexual contact, to wit, placing his hand\non said person's buttocks, without her consent\"\n— conduct defined by\nPenal Law § 130.55 as sexual abuse in the third degree, one of the 3\nmisdemeanors which can properly elevate a charge to persistent sexual\nabuse."
}
]
|
2024.05002 | [
{
"from": "human",
"value": "Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Ford 2024 NY Slip Op 05002 [231 AD3d 1241] October 10, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Lynette R. Ford, Appellant. Donnial K. Hinds, Albany, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Nathan M. Bloom of counsel), for respondent. Fisher, J. Appeal from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered August 15, 2022, convicting defendant upon her plea of guilty of the crime of driving while ability impaired by drugs. In January 2022, defendant was indicted on a charge of driving while ability impaired by drugs, as a felony, based upon two prior convictions of driving while intoxicated in the previous 10-year period. At defendant's arraignment, the People moved to amend the indictment to reflect that it occurred on September 3, 2021, and not on that date in 2022 as stated therein. Defense counsel stated that defendant had no objection to that amendment. Defendant thereafter pleaded guilty to the charge without a sentencing promise, admitting that she drove under the influence of methamphetamines on September 3, 2021, and was involved in an accident with a truck. County Court sentenced defendant to a prison term of 1 to 3 years. Defendant appeals. We affirm. Defendant argues that County Court committed reversible error in allowing the People to amend the year in the indictment. However, \"by pleading guilty . . . , defendant waived any alleged error in permitting the amendment\" ( People v Thompson , 287 AD2d 794, 796 [3d Dept 2001] [internal quotation marks, brackets and citation omitted], lv denied 97 NY2d 688 [2001]; see People v Mathis , 185 AD3d 1094 , 1097 [3d Dept 2020]; People v Martinez , 52 AD3d 68 , 71 [1st Dept 2008], lv denied 11 NY3d 791 [2008]). [FN1] Neither did defendant move to withdraw her guilty plea on this basis and, instead, she declined to object to the amendment and did not oppose the People's motion to amend, thereby failing to preserve any argument that the court erred in permitting the amendment of the indictment ( see People v Mathis , 185 AD3d at 1097; see also People v Kelly , 221 AD3d 1265 , 1266 [3d Dept 2023]; People v Houze , 177 AD3d 1184 , 1187 [3d Dept 2019], lv denied 34 NY3d 1159 [2020]). Defendant further contends that her sentence is unduly harsh and severe. Her argument that she should have been permitted to participate in a judicial diversion program was not preserved for our review, [FN2] and the record does not reflect that she qualified for or followed the requisite statutory procedures for participation in the program ( see CPL 216.00 [1]; 216.05 [1]; People v Vezequ , 205 AD3d 1138 , 1138 [3d Dept 2022], lv denied 38 NY3d 1154 [2022]). Moreover, defendant received the minimum indeterminate prison term for this crime ( see Penal Law § 70.00 [2] [d]; [3] [b]; Vehicle and Traffic Law §§ 1192 [4-a]; 1193 [1] [c] [ii]) and County Court justifiably rejected a one-year jail term ( see Penal Law § 70.00 [4]), given her failure to accept responsibility for her actions, her extensive criminal history that included three prior convictions for driving while intoxicated and her poor performance on probation. Accordingly, we decline her invitation to reduce the sentence in the interest of justice ( see CPL 470.15 [3] [c]; [6] [b]; People v Atutis [*2] , 214 AD3d 1264, 1265 [3d Dept 2023]). Garry, P.J., Pritzker, Lynch and Powers, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: The indictment effectively charged defendant with a crime notwithstanding the error and, thus, the motion to correct the date was directed at a waivable, non-jurisdictional defect in the indictment that did not survive defendant's guilty plea and is subject to preservation rules ( compare People v Hardy , 35 NY3d 466 , 475-476 [2020]; People v Solomon , 203 AD3d 1468 , 1470 [3d Dept 2022], affd 39 NY3d 1114 [2023]). Footnote 2: Prior to defendant's guilty plea, defense counsel looked into defendant's eligibility for drug court treatment in Pennsylvania where she then resided and was on probation, but she moved to New York; County Court thereafter rejected counsel's request to refer her in-state, apparently based upon her repeated failure to appear in court on scheduled dates. Judicial diversion was not discussed as part of the plea agreement and was not mentioned at sentencing. "
},
{
"from": "gpt",
"value": "At\ndefendant's 2021 arraignment, the People moved to amend the indictment\nto reflect that the crime was committed on September 3, 2021, rather than\nSeptember 3, 2023, as stated in the Indictment. Defense counsel had no\nobjection. Defendant later pled guilty to the Indictment. Since the\nIndictment charged a crime, the date on which the crime was committed\nwas a waivable, non-jurisdictional defect that was waived when defendant\npleaded guilty. The Appellate Division noted that defendant did not oppose\nthe motion to amend and therefore did not preserve a challenge to the\npropriety of the amendment."
}
]
|
2024.05819 | [
{
"from": "human",
"value": "Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Robles 2024 NY Slip Op 05819 [42 NY3d 694] November 21, 2024 Garcia, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 5, 2025 [*1] The People of the State of New York, Respondent, v Eddie Robles, Appellant. Argued October 16, 2024; decided November 21, 2024 People v Robles , 211 AD3d 1516 , reversed. {**42 NY3d at 695} OPINION OF THE COURT Garcia, J. Defendant was charged with criminal possession of a weapon. The trial court denied his motion to suppress the gun and a post-arrest admission he made to police, and defendant pleaded guilty. On appeal, the Appellate Division held that defendant's statement should have been suppressed, but that, because the gun would still have been admissible at trial, the error was harmless as there was no reasonable possibility that it contributed to defendant's decision to plead guilty. On this record, however, we cannot say with certainty that the erroneous ruling played no part in that decision, and therefore we reverse. {**42 NY3d at 696} In response to a report of shots fired, two officers approached defendant and, after a struggle, recovered a handgun from him. Prior to any Miranda warnings being administered, an officer asked defendant, \"Hey, Eddie, man, what's going on? Are you all right? Are you okay?\" Defendant responded, \"Bro, you saw what I had on me. I was going to do what I had to do.\" Defendant was indicted on various charges, including second-degree criminal possession of weapon (Penal Law § 265.03 [3]). After Supreme Court denied defendant's motion to suppress both the handgun and his statement, defendant accepted the People's offer of a plea to attempted second-degree criminal possession of a weapon. During the plea colloquy, defendant, who was proceeding pro se, stated, \"I just want to make sure that I can appeal my suppression [*2] hearing.\" In response to the court's question of whether he was pleading guilty because he was guilty and was doing so freely and voluntarily, defendant answered, \"I'm pleading guilty because it's a good deal.\" The court accepted the plea and imposed the agreed-upon sentence. The Appellate Division, with one Justice dissenting, agreed with defendant that his statement should have been suppressed, [FN*] but held that the error was harmless (211 AD3d 1516 [4th Dept 2022]). The Court concluded that \"[b]ecause [the gun] would have been admissible at trial . . . there is no reasonable possibility that the [trial] court's error in failing to suppress defendant's statement admitting possession of the firearm contributed to his decision to plead guilty\" ( id. at 1518). The dissenting Justice, who would have held the record insufficient to support a determination that defendant \"would have pleaded guilty without regard to the error\" ( id. at 1520 [Lindley, J., dissenting]), granted leave to appeal, and we now reverse. Applying a harmless error analysis to guilty pleas is a challenging exercise because a guilty plea \"simply reflects the fact that for some reason, sufficient to the defendant,\" that defendant decided to waive his or her trial rights ( People v Grant , 45 NY2d 366, 379 [1978]). As a result, convictions based on guilty pleas \"generally are not amenable to harmless error review\" ( People v Wells , 21 NY3d 716 , 719 [2013]). This \"general\" rule, however, is not absolute ( id. ). Where, as here, the error is of constitutional dimension, we have held that, in addition to evaluating whether the People's remaining proof in the case {**42 NY3d at 697} constitutes \"overwhelming proof of defendant's guilt\" ( People v Crimmins , 36 NY2d 230, 237 [1975]), harmless error review must also analyze \"whether there is a reasonable possibility that the error contributed to the\" defendant's decision to plead guilty ( Grant , 45 NY2d at 378-379). Where there is any \" 'reasonable possibility that the error contributed to the plea,' \" the conviction must be reversed ( Wells , 21 NY3d at 719, quoting Grant , 45 NY2d at 379). With the framework for assessing harmlessness in mind, we conclude that this is not one of the rare situations where the record \"leave[s] no question regarding [the defendant's] independent motivation to plead guilty\" ( People v Lloyd , 66 NY2d 964, 965 [1985] [defendant pleaded guilty before the suppression hearing, was permitted to withdraw his plea when the court determined that, because of his criminal record, it could not keep its sentencing promise, and later pleaded guilty following the denial of suppression, with the understanding that he would not be sentenced as a persistent or violent felony offender]). A plea before trial leaves \"little if any evidence in the record\" to support a court's evaluation of the quantum and nature of the prosecution's remaining proof ( Grant , 45 NY2d at 378). Here, in determining that the error was harmless, the Appellate Division was able to point to the gun recovered from defendant. But even when there are facts in the record that make possible that part of the analysis, a court must still determine that there is no reasonable possibility that the error contributed to the defendant's decision to plead guilty for harmless error to apply ( see id. at 378-379). That latter inquiry is especially important when, as in the present case, a defendant unsuccessfully sought to suppress a confession and that ruling is reversed on appeal ( id. at 380). The record here is ambiguous at best as to defendant's motivation in pleading guilty. Although defendant asserted during the plea colloquy that he was \"pleading guilty because it's a good deal,\" he may only have believed that \"in the face of all the evidence\" admissible at the time, including his highly incriminating post-arrest statement \"you saw what I had on me\" ( id. at 379). Moreover, when entering his plea, defendant affirmatively sought assurances from the court that he could appeal the suppression determination, indicating the importance he placed on that adverse ruling ( see id. [\"Notably, at the time of plea (the defendant) did not waive his right to appeal\"]). The People's argument that defendant may only have been {**42 NY3d at 698} concerned with the court's suppression of the physical evidence is speculative and insufficient to overcome the high bar for establishing defendant's independent motivation for the plea. On this record, we cannot say that defendant's decision to plead guilty was unaffected by the court's erroneous suppression ruling, and therefore his guilty plea must be vacated. Finally, we reject defendant's request to dismiss the felony indictment ( see People v Bush , 38 NY3d 66 , 72 n 2 [2022]). Accordingly, the order of the Appellate Division should be reversed, defendant's guilty plea vacated and the case remitted to Supreme Court for further proceedings on the indictment. Chief Judge Wilson and Judges Rivera, Singas, Cannataro, Troutman and Halligan concur. Order reversed, defendant's guilty plea vacated and case remitted to Supreme Court, Onondaga County, for further proceedings on the indictment. Footnotes Footnote *: The outcome of the suppression decision is not before us. "
},
{
"from": "gpt",
"value": "Court vacated plea because it could not be said that this was one of the\nexceedingly rare cases where there was no reasonable possibility that trial\ncourt's erroneous denial of motion to suppress statements did not\ncontribute to defendant’s decision to plead guilty.\n\"Although defendant\nasserted during the plea colloquy that he was 'pleading guilty because it's a\ngood deal,\n' he may only have believed that 'in the face of all the evidence'\nadmissible at the time, including his highly incriminating post-arrest\nstatement.\n\""
}
]
|
2024.05153 | [
{
"from": "human",
"value": "Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Lipka 2024 NY Slip Op 05153 [231 AD3d 1283] October 17, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Cody Lipka, Appellant. Matthew C. Hug, Albany, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Nicholas S. Line of counsel), for respondent. Ceresia, J. Appeal from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered November 16, 2018, convicting defendant upon his plea of guilty of the crime of burglary in the first degree. In December 2017, defendant was arrested following an incident wherein he allegedly hid in the backseat of the victim's car while she was driving, then forced her at knifepoint to return to her residence, at which point he choked her and repeatedly threatened to kill her. Subsequently, defendant was charged by indictment with kidnapping in the second degree, burglary in the first degree and strangulation in the second degree. Following a Huntley hearing, County Court denied defendant's motion to suppress statements that he made to law enforcement. At the ensuing trial, after a jury was empaneled, defendant accepted a plea offer requiring him to serve 14 years in prison, to be followed by five years of postrelease supervision, in exchange for pleading guilty to burglary in the first degree. Defendant did not, however, waive his right to appeal. The court subsequently sentenced defendant as negotiated. Defendant appeals. Defendant's sole argument is that his statements to the police should have been suppressed because, while in custody, he invoked his right to counsel on four separate occasions. \"The right to counsel indelibly attaches as soon as a defendant in custody unequivocally requests the assistance of counsel. Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request, including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant\" ( People v Bowman , 194 AD3d 1123 , 1127-1128 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], lv denied 37 NY3d 963 [2021]). With regard to the first purported invocation of the right to counsel, shortly after the incident in question, defendant was involved in a vehicle chase with the police, resulting in a collision whereby defendant was injured and taken to the hospital for treatment. State Police investigators spoke to him in his hospital room. When they told defendant that they wanted to discuss the incident involving the victim, defendant responded that he did not know if he should talk without a lawyer. This statement by defendant, however, did not mandate suppression, as the mere suggestion that one might consult a lawyer or expression of uncertainty as to whether an attorney is needed does not constitute an unequivocal invocation ( see People v Mitchell , 2 NY3d 272 , 276 [2004]; People v Rowell , 59 NY2d 727, 730 [1983]; People v Hurd , 279 AD2d 892, 893 [3d Dept 2001]). As for defendant's second supposed invocation, a statement that he made once he had been brought to an interview room at the State Police barracks and was being questioned by investigators—to the effect that he was unsure what to do and was [*2] \"very hesitant about playing the lawyer card\" because he did not know the particular charges he was facing—also was not an unequivocal request for counsel. At most, this could be viewed as \"a mere forewarning of a possible, contingent desire to confer with counsel as opposed to a present desire to do so\" ( People v Bowman , 194 AD3d at 1129; see People v Whiting , 170 AD3d 1654 , 1655 [4th Dept 2019], lv denied 33 NY3d 1036 [2019]). As such, suppression on the basis of this statement was properly denied. We next consider defendant's third claimed invocation of his right to counsel. In the course of the investigators' questioning of defendant, they transitioned away from asking defendant about his flight from the police and turned to the underlying domestic violence incident. When they began focusing on how he had first encountered the victim earlier that morning, defendant expressed that he did not wish to discuss that subject. After the investigators continued with a couple of follow-up questions on this topic, defendant stated, \"that's what I want a lawyer for.\" He then went on to say that he was scared to talk and noted that he could still cooperate with the District Attorney at a later time. Under these circumstances, we conclude that defendant clearly invoked his right to counsel. Although the first two alleged invocations described above did not constitute requests for an attorney, they nevertheless serve to indicate that the subject of obtaining a lawyer was on defendant's mind while he was being questioned. With that said, once the interrogation moved to the underlying incident, defendant \"articulated his desire to have counsel present such that a reasonable police officer should have understood that he was requesting an attorney\" ( People v Jones , 21 AD3d 429 , 429 [2d Dept 2005], lv denied 6 NY3d 755 [2005]; see People v Harris , 177 AD3d 1199 , 1203-1204 [3d Dept 2019], lv denied 35 NY3d 970 [2020]). Accordingly, any statements made by defendant thereafter should have been suppressed. [FN*] Further, contrary to the People's contention, this erroneous suppression ruling was not harmless. \"It is unusual for a conviction rendered after a guilty plea to be amenable to harmless error analysis for the simple reason that 'an appellate court is rarely in a position to determine whether denial of a suppression motion played any part in a defendant's decision to plead' \" ( People v Henry , 133 AD3d 1085 , 1087 [3d Dept 2015], quoting People v Lloyd , 66 NY2d 964, 965 [1985]; see People v Teixeira-Ingram , 199 AD3d 1240 , 1242 [3d Dept 2021]). That being the case, the record does not establish that defendant's decision to plead guilty was entirely independent of the ruling ( see People v Wells , 21 NY3d 716 , 719 [2013]). Garry, P.J., Egan Jr., Reynolds Fitzgerald and Powers, JJ., concur. Ordered that the judgment is reversed, on the law, plea vacated and matter remitted to the County Court of Chemung County for further proceedings not inconsistent with this Court's [*3] decision. Footnotes Footnote *: Given this ruling, we need not address defendant's fourth claimed invocation. "
},
{
"from": "gpt",
"value": "Defendant aborted his trial and entered a plea of guilty with a bargained-\nfor sentence. On appeal, the App. Div. agreed with defendant that certain\npost-arrest statements should have been suppressed because he had\nunequivocally invoked his right to counsel. The erroneous suppression\nruling could not be deemed harmless error, for the record did not establish\nthat defendant's decision to plead guilty was entirely independent of the\nsuppression ruling. See People v Lloyd, 66 NY2d 964, 965 [1985]."
}
]
|
2024.05920 | [
{
"from": "human",
"value": "Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.\n\nPeople v Melissa OO. 2024 NY Slip Op 05920 [234 AD3d 101] November 27, 2024 Powers, J. Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 5, 2025 [*1] The People of the State of New York, Respondent, v Melissa OO., Appellant. Third Department, November 27, 2024 APPEARANCES OF COUNSEL John R. Trice , Elmira, for appellant. Michael D. Ferrarese, District Attorney , Norwich, and New York Prosecutors Training Institute, Inc. , Albany ( Karen Fisher McGee of counsel), for respondent. {**234 AD3d at 102} OPINION OF THE COURT Powers, J. Appeal from an order of the County Court of Chenango County (Frank B. Revoir Jr., J.), entered May 26, 2023, which dismissed defendant's application for resentencing pursuant to CPL 440.47, without a hearing. In 2016, defendant was charged by indictment with two counts of murder in the second degree, robbery in the first degree and two counts of assault in the first degree. The charges stemmed from her participation in a robbery that resulted in the violent death of the victim and theft of his personal property. In full satisfaction of the indictment, and in exchange for her cooperation and truthful testimony in the prosecution of her codefendant, defendant pleaded guilty to robbery in the first degree. Following her cooperation in that prosecution, defendant was sentenced to a prison term of 15 years, to be followed by five years of postrelease supervision, consistent with the terms of the plea agreement. In 2022, defendant requested permission to apply for resentencing pursuant to the Domestic Violence Survivors Justice Act (hereinafter DVSJA) ( see CPL 440.47 [1] [c]; Penal Law § 60.12, as amended by L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW, § 1) and was assigned counsel. [FN1] Initially, County Court found that defendant met the threshold statutory eligibility requirements, granted {**234 AD3d at 103} permission and defendant applied for resentencing. However, in May 2023, the court dismissed the application without prejudice finding that, although she met the step one eligibility criteria for an alternative sentence, \"there [was] no [corroborating] evidence nor even allegations presented that [d]efendant was, at the time of the offense, a victim of domestic violence subjected to substantial abuse inflicted by a member of her family or household\" as required by CPL 440.47 (2) (c) ( see CPL 440.47 [1] [a]; [2] [d]; see also Penal Law § 60.12 [1]). Defendant appeals. [FN2] As an initial matter, the People contend that there is no statutory authority by which defendant can appeal from the May 2023 order dismissing her application for resentencing under the DVJSA without prejudice. We agree and, therefore, must dismiss this appeal. It is well settled that \"a defendant's right to appeal within the criminal procedure universe is purely statutory\" ( People v Nieves , 2 NY3d 310 , 314 [2004] [internal quotation marks and citation omitted]; accord People v Smith , 15 NY3d 669 , 673 [2010]; see CPL 450.10 [1], [2]; 450.30 [1], [3]; People v Callahan , 80 NY2d 273, 284 [1992]). Thus, under established law, \"no appeal lies from a determination made in a criminal proceeding unless one is provided by the CPL\" and, absent express statutory authority for an appeal in a criminal case, there is no right to appeal ( People v Stevens , 91 NY2d 270, 277 [1998] [internal quotation marks and citation omitted]; see People v Smith , 27 NY3d 643 , 647 [2016]; People v De Jesus , 54 NY2d 447, 449 [1981]; People v Johnson , 203 AD3d 1396 , 1397 [3d Dept 2022]; People v Overbaugh , 175 AD3d 1621 , 1622-1623 [3d Dept [*2] 2019]). The order here dismissing defendant's application for resentencing without prejudice is not appealable to this Court as of right under the general statutory provisions authorizing appeals to intermediate appellate courts under CPL 450.10 nor is the order of dismissal one for which defendant could seek permission to appeal to this Court under CPL 450.15. Consequently, defendant's right to appeal is strictly limited to whether CPL 440.47 granted such a right. As background, the DVSJA amended Penal Law § 60.12 by authorizing the imposition of alternative sentences for {**234 AD3d at 104} survivors of domestic violence and added CPL 440.47, which provides a three-step procedure for survivors of domestic violence who are currently serving their sentences to apply for resentencing ( see generally People v Liz L. , 221 AD3d 1288 , 1289 [3d Dept 2023]). As a first step, CPL 440.47 requires that a defendant \"submit . . . a request to apply for resentencing in accordance with [Penal Law §] 60.12\" (CPL 440.47 [1] [a]; see [1] [b]). Such request must demonstrate that he or she is \"serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to [August 12, 2019] and that she or he is serving such sentence for any offense eligible for an alternative sentence under [Penal Law §] 60.12\" (CPL 440.47 [1] [a]; see People v Wendy B.-S. , 229 AD3d 1317 , 1318 [4th Dept 2024], lv denied 42 NY3d 1022 [2024]). \"If the court finds that such person has not met the requirements to apply for resentencing . . . , the court shall notify such person and dismiss his or her request without prejudice \" (CPL 440.47 [1] [d] [emphasis added]). However, \"[i]f the court finds that the defendant has met the requirements to apply for resentencing, the court must notify the defendant that they may submit an application for resentencing\" ( People v Wendy B.-S. , 229 AD3d at 1318, citing CPL 440.47 [1] [c]). [FN3] As a second step, upon being notified that he or she may submit an application for resentencing, CPL 440.47 (2) (c) requires the defendant's application to include \"at least two pieces of evidence corroborating the applicant's claim that he or she was, at the time of the offense, a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household\" (CPL 440.47 [2] [c]). This evidentiary requirement mandates that \"[a]t least one piece of evidence must be either a court record, pre-sentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection\" (CPL 440.47 [2] [c]). In addition, the statute provides a non-exhaustive list of the types of evidence that could satisfy the evidentiary requirement for the second piece of corroborating evidence ( see CPL 440.47 [2] [c]). If the trial court finds that the applicant has not satisfied this evidentiary [*3] requirement, it must \" dismiss the application without {**234 AD3d at 105} prejudice \" (CPL 440.47 [2] [d] [emphasis added]). Whereas, if the trial court determines that the applicant has satisfied the evidentiary requirements of step two, it must then, as a third step, conduct a hearing and determine whether resentencing is warranted and, if so, vacate the original sentence and impose a new sentence ( see CPL 440.47 [2] [e], [g]). CPL 440.47 then provides, as is relevant here, that \"[a]n appeal may be taken as of right . . . from an order denying resentencing . . . or . . . from a new sentence imposed [there]under\" (CPL 440.47 [3] [emphasis added]). Therefore, by the express statutory terms of CPL 440.47, an order either denying resentencing after a hearing or imposing a new sentence is appealable as of right ( see CPL 440.47 [3]). However, no provision is made for the right to appeal from the dismissal of an application without prejudice under step one or, like here, step two based on the failure to submit the evidentiary proof required ( compare CPL 440.47 [1] [d]; [2] [d], with [2] [f]). While the Legislature did not amend the general provisions in CPL article 450 authorizing appeals to intermediate appellate courts, it did amend CPL 450.90 to permit, so long as a certificate granting leave to appeal is issued, an appeal to the Court of Appeals \"by either the defendant or the [P]eople from any adverse or partially adverse order of an intermediate appellate court . . . entered pursuant to . . . [CPL] 440.47\" (CPL 450.90 [1]). Thus, in enacting the DVSJA, the Legislature expressly authorized appeals as of right to an intermediate appellate court from orders denying resentencing or granting resentencing and imposing a new sentence while providing no express statutory right to appeal from an order dismissing an application for resentencing prior to a hearing ( see CPL 440.47 [2] [f], [g]; [3]; People v James QQ. , 232 AD3d 1137 , 1138 [3d Dept 2024] [decided herewith]). [FN4] {**234 AD3d at 106} Where, as here, the Legislature specifically provides for appealability of certain orders but not others, \"an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded\" ( Town of Aurora v Village of E. Aurora , 32 NY3d 366 , 372-373 [2018] [internal quotation marks and citations omitted]; see McKinney's Cons Laws of NY, Book 1, Statutes § 240). \"[S]ince the Legislature failed to provide for an appeal from the [dismissal] of an application for resentencing pursuant to [Penal Law § 60.12 and CPL 440.47 (2) (c)], no appeal was intended\" ( People v De Jesus , 54 NY2d at 449). \"Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used\" ( Matter of Spence v State Univ. of N.Y. , 195 AD3d 1270 , 1273 [3d Dept 2021] [internal quotation marks, brackets and citation omitted]). Here, the Legislature intended a different result as to the appealability of orders dismissing without prejudice [*4] under step one or step two and an order denying an application on the merits after a hearing under step three, and this Court must give effect to that intention ( compare CPL 440.47 [1] [d]; [2] [d], with [2] [f]). Had an appeal from a dismissal without prejudice been intended under step one or step two of the DVSJA, \"the [L]egislature could easily have so stated\" ( Town of Aurora v Village of E. Aurora , 32 NY3d at 373; see People v De Jesus , 54 NY2d at 449). Rather, the language utilized by the Legislature—specifically that dismissal is without prejudice—mandates that the appropriate remedy in this situation is for a defendant to file a new application satisfying the evidentiary requirements of CPL 440.47. Thus, as \"[a]ppeals in criminal cases are strictly limited to those authorized by statute,\" this appeal is not properly before this Court and must be dismissed ( People v Bautista , 7 NY3d 838 , 838-839 [2006]). [FN5] Garry, P.J., Lynch, Reynolds Fitzgerald and Fisher, JJ., concur. {**234 AD3d at 107} Ordered that the appeal is dismissed. Footnotes Footnote 1: Defendant had previously requested permission to apply for resentencing in August 2019 and, although counsel was appointed, no further submissions in support of defendant's application were made. Footnote 2: During the pendency of this appeal, the People moved to dismiss the appeal, contending that there is no statutory authority for a defendant to appeal from an order dismissing an application for resentencing without prejudice. This Court denied the People's motion without prejudice to the issues being raised upon the argument of the appeal (2024 NY Slip Op 65407[U] [3d Dept, Apr. 4, 2024]). Footnote 3: There is no dispute that defendant met the statutory requirements under step one to be permitted to apply for resentencing ( see CPL 440.47 [1] [a]). Footnote 4: We must note that, although this Court has not previously addressed the appealability of a dismissal under steps one or two of the DVSJA, we have reviewed the merits of such a dismissal ( see generally People v James NN. , 224 AD3d 1014 , 1014-1015 [3d Dept 2024], lv denied 42 NY3d 927 [2024]). In People v James NN. , this Court addressed the merits of an appeal from an order dismissing, without a hearing, an application for resentencing pursuant to CPL 440.47, where the dismissal was due to defendant's failure to make the requisite evidentiary showing under CPL 440.47 (2) (c). Similarly, the Second and Fourth Departments have addressed the merits of appeals involving step one or two dismissals ( see People v White , 226 AD3d 1054 , 1055-1056 [2d Dept 2024], lv denied 42 NY3d 931 [2024]; People v Shawn G.G. , 225 AD3d 1246 , 1246-1247 [4th Dept 2024], lv denied 42 NY3d 940 [2024]; People v Coles , 202 AD3d 706 , 706-707 [2d Dept 2022]). However, appealability was not raised or decided in the prior appeal before this Court and does not appear to have been raised in those before the Second or Fourth Departments. Footnote 5: We are mindful that the failure to provide for the statutory right to appeal from an order dismissing a defendant's DVSJA resentencing application without prejudice could insulate from appellate review certain trial court determinations where a defendant has exhausted his or her potential universe of evidentiary submissions. Nonetheless, it is entirely within the province of the Legislature to provide a remedy to permit appeals in these circumstances and not for this Court \"to legislate under the guise of interpretation\" ( People v Boothe , 16 NY3d 195 , 198 [2011] [internal quotation marks and citations omitted]). "
},
{
"from": "gpt",
"value": "App. Div. agreed with the People that the CPL confers the right to appeal\nonly upon defendants whose CPL 440.47 motions were decided after a\nhearing. Consequently, it dismissed the appeal brought by a defendant\nwhose DVSJA motion for resentencing was found insufficient at stage 2.\nCPL 440.47 (1) (d) and (2) (d) require the sentencing court to dismiss the\nrequest/application without prejudice if the defendant does not meet the\nthreshold requirements.\n\"[T]he language utilized by the Legislature —\nspecifically that dismissal is without prejudice [emphasis in original] —\nmandates that the appropriate remedy in this situation is for a defendant to\nfile a new application....\n\""
}
]
|
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