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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\""
}
]
|
2024.03518 | [
{
"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 Harris 2024 NY Slip Op 03518 [228 AD3d 1186] June 27, 2024 Appellate Division, Third 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 Harris, Appellant. Angela Kelley, East Greenbush, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent. Mackey, J. Appeal from an order of the County Court of Schenectady County (Matthew J. Sypniewski, J.), entered September 18, 2018, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act. In 2012, defendant pleaded guilty to sexual abuse in the first degree stemming from his sexual abuse of a six-year-old relative, and was sentenced to 7 1/2 years in prison followed by 20 years of postrelease supervision. In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument and recommended that he be classified as a risk level three sex offender pursuant to the Sex Offender Registration Act ( see Correction Law art 6-c [hereinafter SORA]), with a sexually violent offender designation, based upon the override factor that he had a prior felony conviction for a sex offense, namely, attempted sodomy in the first degree ( see Penal Law former § 130.50 [3]; Correction Law § 168-a [3] [a]). At the hearing, County Court advised defendant, who was represented by counsel, that he had a right to a hearing to challenge the Board's recommendation and the presumptive override, and to contest the evidence and present a defense. Defendant then waived a hearing and, on defendant's consent, County Court classified him as a risk level three sex offender and designated him a sexually violent offender, and defendant appeals. It is well established that SORA risk level classification proceedings are civil in nature and not part of the criminal action ( see People v Watts , — NY3d &mdash, &mdash, 2024 NY Slip Op 00926, *2-3 [2024]; People v Perez , 35 NY3d 85 , 94 [2020]; People v Stevens , 91 NY2d 270, 277 [1998]) and, as such, SORA risk determinations are \"subject to a civil appeal process\" ( People v Buyund , 37 NY3d 532 , 540 [2021]). By statute, appeals as of right to the Appellate Division from SORA risk classification orders are pursuant to CPLR articles 55 and 57 ( see Correction Law § 168-n [3]). However, a party who consents to an order, including a SORA order, in a civil proceeding is not aggrieved by the order within the meaning of CPLR 5511 and, accordingly, defendant's appeal must be dismissed ( see People v White , 39 AD3d 979 , 979 [3d Dept 2007]; see also People v Jennings , 146 AD3d 823 , 824 [2d Dept 2017]; People v Johnson , 142 AD3d 1061 , 1061 [2d Dept 2016], lv dismissed 28 NY3d 1104 [2016]; Matter of O'Sullivan v Schebilski , 138 AD3d 1170 , 1172 [3d Dept 2016]; People v Brown , 125 AD3d 1380 , 1380-1381 [4th Dept 2015]; People v Welch , 30 AD3d 392 , 393 [2d Dept 2006]; cf. People v Motta , 215 AD3d 771 , 772 [2d Dept 2023]). Defendant's argument that his consent was not voluntary due, in part, to the ineffective assistance of counsel may be addressed to County Court in a motion to vacate the order, \"at which time he can present evidence in support of his allegations, proof of which is otherwise absent from this record\" ( People v Johnson , 142 AD3d at 1061; see Matter of O'Sullivan v Schebilski , 138 [*2] AD3d at 1172; Matter of Commissioner of Social Servs. v Karcher , 129 AD3d 1351 , 1351 [3d Dept 2015]; People v Brown , 125 AD3d at 1381; see also People v Eiss , 158 AD3d 905 , 907 [3d Dept 2018], lv denied 31 NY3d 907 [2018]). Aarons, J.P., Pritzker, Lynch and Ceresia, JJ., concur. Ordered that the appeal is dismissed, without costs."
},
{
"from": "gpt",
"value": "An\nappeal from a SORA Risk Level determination is a civil appeal. Where a\ndefendant consents to a SORA order, the defendant is not an aggrieved\nparty and has no right to appeal under the CPLR."
}
]
|
2024.05001 | [
{
"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 Holland 2024 NY Slip Op 05001 [231 AD3d 1240] 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] (October 10, 2024) The People of the State of New York, Respondent, v Gregory S. Holland, Appellant. Lisa A. Burgess, Indian Lake, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Kurt C. Reh of counsel), for respondent. Ceresia, J. Appeal from a decision of the County Court of Clinton County (Keith M. Bruno, J.), entered June 17, 2021, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act. In 2009, in full satisfaction of a multicount indictment, defendant pleaded guilty to rape in the first degree and was sentenced to a prison term of 15 years, to be followed by five years of postrelease supervision. In anticipation of defendant's release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level three sex offender (110 points) pursuant to the Sex Offender Registration Act ( see Correction Law art 6-C). Following a hearing, County Court classified defendant as a risk level three sex offender with a sexually violent offender designation. This appeal ensued. \"County Court is statutorily required to 'render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based' \" ( People v West , 193 AD3d 1127 , 1128 [3d Dept 2021] [citations omitted], quoting Correction Law § 168-n [3]; accord People v Lane , 202 AD3d 32 , 35 [3d Dept 2021]). Although County Court indeed issued a written decision setting forth its findings of fact and conclusions of law, \"the decision contains no language indicating that it is an order or judgment, and it does not appear that a written order was entered and filed\" ( People v Porter , 178 AD3d 1159 , 1160 [3d Dept 2019]; see People v Wassilie , 193 AD3d 1193 , 1194 [3d Dept 2021]). Similarly, the final risk level determination signed by County Court \"does not contain [any] 'so ordered' language so as to constitute an appealable order\" ( People v Johnson , 179 AD3d 1159 , 1160 [3d Dept 2020]; see People v Wassilie , 193 AD3d at 1194). Absent an order from County Court, the appeal is not properly before us and must be dismissed ( see People v Wassilie , 193 AD3d at 1194; People v Johnson , 179 AD3d at 1160). Aarons, J.P., Lynch, McShan and Mackey, JJ., concur. Ordered that the appeal is dismissed, without costs."
},
{
"from": "gpt",
"value": "At\nthe conclusion of a SORA Hearing, the County Court issued a decision,\nmaking findings of fact and conclusions of law, but there was no language\nindicating the document was an Order or judgment. The Risk Level\ndetermination signed by the court also did not contain \"So Ordered\"\nlanguage. Since there was no Order from the County Court in existence,\nthe appeal was dismissed."
}
]
|
2024.06450 | [
{
"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 Williams 2024 NY Slip Op 06450 [233 AD3d 1463] December 20, 2024 Appellate Division, Fourth 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 Charles Williams, Appellant. Banasiak Law Office, PLLC, Syracuse (Piotr Banasiak of counsel), for defendant-appellant. William J. Fitzpatrick, District Attorney, Syracuse (Elisabeth Dannan of counsel), for respondent. Appeal from a judgment of the Onondaga County Court (Gordon J. Cuffy, A.J.), rendered December 15, 2021. The judgment convicted defendant upon a jury verdict of murder in the second degree and criminal possession of a weapon in the second degree (two counts). It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]) in connection with the shooting death of the victim. Defendant contends that he was denied a fair and impartial jury. During voir dire, a prospective juror suggested that she may have known of defendant due to her position as a correction officer. Defendant's request to \"strike the entire panel\" was denied. In this context, defendant's request constituted a for-cause challenge to each of the prospective jurors that had been assembled for voir dire in the same group ( see People v Doherty , 37 AD3d 859 , 860 [3d Dept 2007], lv denied 9 NY3d 843 [2007]; see generally People v Chavys , 263 AD2d 964, 964 [4th Dept 1999], lv denied 94 NY2d 821 [1999]). In other words, defendant was not attempting to strike the entire panel of prospective jurors on the basis that the selection process was unconstitutional or otherwise improper, but was rather attempting to strike multiple prospective jurors, for cause, that allegedly had been individually prejudiced such that each had \"a state of mind that [was] likely to preclude\" the rendering of an impartial verdict (CPL 270.20 [1] [b]). Even assuming, arguendo, that County Court erred in refusing to excuse for cause the prospective jurors in question, we conclude that \"such an error would not constitute reversible error 'unless . . . defendant ha[d] exhausted his peremptory challenges at the time or, if he ha[d] not, he peremptorily challenge[d] such prospective juror[s] and his peremptory challenges [were] exhausted before the selection of the jury [was] complete,' \" and neither scenario is applicable here ( People v Osman , 174 AD3d 1477 , 1480 [4th Dept 2019], lv denied 34 NY3d 1080 [2019], quoting CPL 270.20 [2]; see People v LaValle , 3 NY3d 88 , 102 [2004]; People v Case , 197 AD3d 985 , 987 [4th Dept 2021], lv denied 37 NY3d 1160 [2022]; Doherty , 37 AD3d at 860). Defendant contends that the verdict is against the weight of the evidence because, although the evidence established that he was near the scene at the time of the shooting, it did not establish that he entered the apartment in which the shooting occurred. Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Here, \"the element of identity was established by a compelling chain of circumstantial evidence that had no reasonable explanation except that defendant was [the shooter]\" ( People v Jackson , 140 AD3d 1771 , 1771 [4th Dept 2016], lv denied 28 NY3d 931 [2016]), despite the fact that no one witnessed, and no video showed, [*2] defendant firing the shots that struck the victim ( see People v Scott , 198 AD3d 1325 , 1326 [4th Dept 2021], lv denied 37 NY3d 1164 [2022]; People v Clark , 142 AD3d 1339 , 1341 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]; see generally People v Malone , 196 AD3d 1054 , 1055 [4th Dept 2021], lv denied 37 NY3d 1028 [2021]). Defendant further contends that he was denied a fair trial by prosecutorial misconduct on summation, but we note that he failed to object to any of the comments he now raises on appeal, and thus his contention is not preserved for our review ( see People v Smith , 150 AD3d 1664 , 1666 [4th Dept 2017], lv denied 30 NY3d 953 [2017]). In any event, defendant's contention is without merit. We conclude that any improper remarks made by the prosecutor did not deny defendant a fair trial ( see id. at 1666-1667; see also People v Freeman , 206 AD3d 1694 , 1695 [4th Dept 2022]). Contrary to defendant's contention, the sentence is not unduly harsh or severe. We note, however, that the uniform sentence and commitment form erroneously states that defendant was sentenced to five years of imprisonment on each count of criminal possession of a weapon in the second degree, and it must therefore be amended to reflect that he was sentenced to seven years of imprisonment on each of those counts. Finally, we agree with defendant that, as the People correctly concede, the presentence report (PSR) has not been amended as the court directed during sentencing and, therefore, all copies of the PSR must be amended in accordance with the court's directive ( see e.g. People v Lovines , 208 AD3d 1639 , 1639-1640 [4th Dept 2022]; People v Bubis , 204 AD3d 1492 , 1495 [4th Dept 2022], lv denied 38 NY3d 1149 [2022]; People v Barbuto , 126 AD3d 1501 , 1505 [4th Dept 2015], lv denied 25 NY3d 1159 [2015]). Present—Smith, J.P., Bannister, Montour, Greenwood and Keane, JJ."
},
{
"from": "gpt",
"value": "Even if trial court erred in refusing to excuse prospective for cause, such\nan error will not give rise to reversal \"unless . . . defendant ha[d] exhausted\nhis peremptory challenges at the time or, if he ha[d] not, he peremptorily\nchallenge[d] such prospective juror[s] and his peremptory challenges\n[were] exhausted before the selection of the jury [was] complete.\n\" CPL\n270.20 (2). Neither scenario presented here."
}
]
|
2024.03201 | [
{
"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 Luna 2024 NY Slip Op 03201 [228 AD3d 1061] June 13, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 31, 2024 [*1] (June 13, 2024) The People of the State of New York, Respondent, v Joevany Luna, Appellant. Danielle Neroni Reilly, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent. Ceresia, J. Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered July 30, 2018, upon a verdict convicting defendant of the crimes of murder in the first degree, conspiracy in second degree and criminal possession of a weapon in the second degree (two counts). In the early morning hours of November 19, 2016, Charles Dembrosky (hereinafter the victim) was shot once in the neck outside his apartment in the City of Schenectady, resulting in his near-instant death. Nine months later, defendant, Tarchand Lall and Kyshaan Moore were charged by way of indictment with murder in the first degree, conspiracy in the second degree and two counts of criminal possession of a weapon in the second degree. [FN1] Lall's trial was severed, and defendant and Moore were tried together. Defendant was convicted as charged and was thereafter sentenced to a prison term of life without the possibility of parole on the murder count. As for the remaining counts, defendant was sentenced, as a second felony offender, to a concurrent prison term of 12 1/2 to 25 years on the conspiracy charge, and, as a second violent felony offender, to 15 years in prison plus five years of postrelease supervision on each of the weapon possession charges, ordered to run concurrently with each other and consecutively to the murder and conspiracy charges. Defendant appeals. Initially, defendant contends that the evidence is legally insufficient to sustain his convictions and that the verdict is against the weight of the evidence. \"In conducting a legal sufficiency analysis, this Court views the evidence in the light most favorable to the People and evaluates whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged\" ( People v Warner , 194 AD3d 1098 , 1099 [3d Dept 2021] [internal quotation marks and citations omitted], lv denied 37 NY3d 1030 [2021]; see People v Agan , 207 AD3d 861 , 862 [3d Dept 2022], lvs denied 38 NY3d 1186 [2022], 39 NY3d 939 [2022]). Conversely, \"[w]hen undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence\" ( People v Agan , 207 AD3d at 862-863 [internal quotation marks and citations omitted]; see People v Rivera , 212 AD3d 942 , 944 [3d Dept 2023], lv denied 39 NY3d 1113 [2023]). As relevant here, \"[a] person is guilty of murder in the first degree when . . . the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than [*2] the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement\" (Penal Law § 125.27 [1] [a] [vi]). Further, \"[a] person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct\" (Penal Law § 105.15). Additionally, \"[a] person is guilty of criminal possession of a weapon in the second degree when . . . with intent to use the same unlawfully against another, such person . . . possesses a loaded firearm\" (Penal Law § 265.03 [1] [b]) or when \"such person possesses any loaded firearm\" outside \"such person's home or place of business\" (Penal Law § 265.03 [3]). Defendant's girlfriend at the time of the charged crimes (hereinafter the girlfriend) testified as follows. In November 2016, she was living in Delaware with her children and dating defendant, who also lived in Delaware. Around that time, defendant told her that he had to go to New York to handle some business, which he subsequently clarified to mean he was going to kill someone. She understood that he would be paid $10,000 to do this. Defendant asked her to go to Walmart and pick up a \"[m]oney [g]ram\" which was being sent by his associates in New York to cover the cost of a car rental. On November 16, 2016, defendant and the girlfriend went to Walmart, where she retrieved cash in the amount of $700 and gave it to defendant. Days later, defendant went to the girlfriend's house and dropped off his car, asking her to take it out and use it that evening. She saw him walk outside toward a red sedan with at least one other person inside. That night, she talked to defendant multiple times on the phone, with him telling her at one point that he was in upstate New York. She later tried calling him, but the call went straight to voicemail and she was unable to reach him at that number at any point thereafter. The next morning, defendant arrived back at the girlfriend's house. She asked him what happened, and he responded, \"[t]he less you know, the better you are.\" When she continued to press him, defendant told her that he \"killed someone.\" During that same day, she saw him disassemble a handgun and soak the components in bleach. She told defendant that she wanted the gun out of the house and he eventually got rid of it. In addition, at defendant's request, the girlfriend reported that defendant's cell phone had been stolen. An insurance agent testified that, in May 2016, Lall obtained a life insurance policy in the amount of $150,000, for which the victim was the insured party and Lall was the beneficiary. At that time, Lall claimed that the victim was his domestic partner. Lall contacted the agent three times in the ensuing months to verify that the policy was [*3] still in effect. In the days leading up to the shooting, Lall made two cash withdrawals from his bank account, each totaling $5,000. Two days after the shooting, Lall again contacted the insurance agent and indicated that he wanted to collect the death benefit, resulting in an investigation that revealed that Lall and the victim were not, in actuality, domestic partners. The police reviewed the victim's phone records and determined that the last three calls received by the victim on the morning of his death were from someone using a number with an area code covering a part of Pennsylvania that is close to Delaware (hereinafter the Pennsylvania number). Shortly after the victim was killed, the phone connected to the Pennsylvania number was turned off and never used again. Although the Pennsylvania number was associated with a prepaid cell phone that did not have a named subscriber, there was evidence that the girlfriend contacted defendant at this number and, indeed, defendant told both the police and his probation officer that the number was his. The Pennsylvania number also had numerous contacts with Lall, including over 100 calls in the month before the shooting, but none afterward. On November 16, 2016, the date that defendant and the girlfriend went to Walmart to pick up cash, Lall received a text message from the Pennsylvania number consisting of the girlfriend's full name. Cell site location data indicated that the phone using the Pennsylvania number traveled north from Delaware and followed the New York State Thruway to Schenectady in the hours leading up to the shooting, before it was turned off and never used again. The police used the state's license plate reader system to determine that the only vehicle to make this roundtrip during the relevant time period was a red sedan registered to Moore's girlfriend, who testified and confirmed that it was her vehicle that had been captured by the license plate reader. She stated that Moore had access to her car and later told her that he was in New York for a dice game during the relevant weekend. Through their investigation, the police learned the number for Moore's cell phone and determined that this phone, too, had traveled from Delaware to Schenectady at the same time as the Pennsylvania number on the night in question, and had also traveled back to Delaware later that night. There were numerous calls between Moore's number and the Pennsylvania number on the day of the shooting—but, notably, no calls between the two numbers during the time period that they were both tracked traveling to New York. Surveillance cameras positioned at various points in Schenectady captured the movements of a red sedan on the night in issue. The car could be seen approaching Lall's residence shortly before the shooting, with what appeared to be two people inside, and an individual, identified at trial as Lall, was observed walking between the car and the residence. The car then drove toward the victim's home [*4] , coming within a few blocks before it was no longer visible due to a lack of surveillance cameras in that area. The car passed Lall's residence again approximately one hour later, before departing the area. The police also obtained eavesdropping warrants for various phone numbers and intercepted a number of calls between defendant and Moore. In one call, a voice identified as defendant's asks a person identified as Moore whether the police have \"any [pictures] of us,\" and Moore responds that the police have video \"of us driving.\" In another call, Moore tells a third party that the \"[m]otherf***er shot his a** as soon as he came out.\" In addition, during a subsequent police interview, defendant stated that even if he named other individuals, he was still going to jail. The foregoing evidence, viewed in the light most favorable to the People, is legally sufficient to support each of defendant's convictions ( see People v Jones , 215 AD3d 1123 , 1129 [3d Dept 2023], lv denied 40 NY3d 935 [2023]; People v Warner , 194 AD3d 1098 , 1103 [3d Dept 2021], lv denied 37 NY3d 1030 [2021]). As for defendant's argument that the People's proof fell short because it rested on the testimony of a purported accomplice—the girlfriend—whose testimony was not sufficiently corroborated, we disagree. While a defendant may not be convicted of an offense solely upon the testimony of an accomplice, the necessary corroborative evidence \" 'need not show that the defendant was connected with the commission of the crime; it . . . is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth' \" ( People v Reome , 15 NY3d 188 , 192 [2010], quoting People v Dixon , 231 NY 111, 116 [1921]; accord People v Ashe , 208 AD3d 1500 , 1502 [3d Dept 2022], lv denied 39 NY3d 961 [2022]). That said, even assuming that the jury concluded that the girlfriend was an accomplice, [FN2] the additional trial evidence amply corroborated her testimony. The above-described proof, including the evidence obtained by means of cell phone records, cell site location data, license plate readers, surveillance cameras and eavesdropping warrants, provided far more than the \"slim corroborative linkage\" necessary to sustain the People's burden of providing legally sufficient evidence to support each element of the charged crimes ( People v Breland , 83 NY2d 286, 294 [1994]; accord People v Malak , 117 AD3d 1170 , 1174 [3d Dept 2014], lv denied 24 NY3d 1086 [2014]; see People v Jones , 215 AD3d at 1129; People v Davis , 200 AD3d 1200 , 1203 [3d Dept 2021]; People v Heimroth , 181 AD3d 967 , 969 [3d Dept 2020], lv denied 35 NY3d 1027 [2020]). Turning to the weight of the evidence, a different verdict would not have been unreasonable had the jury chosen to disbelieve the testimony of the girlfriend, who admitted that, in exchange for testifying, the District Attorney had paid her relocation expenses of approximately $1,000 and [*5] promised not to prosecute her for any role she played in the crimes. Nevertheless, deferring to the jury's credibility determinations, we conclude that the verdict is supported by the weight of the evidence ( see People v Slivienski , 204 AD3d 1228 , 1235 [3d Dept 2022], lv denied 38 NY3d 1136 [2022]; People v Davis , 200 AD3d at 1203; People v Heimroth , 181 AD3d at 969). Defendant's contention that a circumstantial evidence charge was warranted is unpreserved for appellate review ( see People v Drumgold , 206 AD3d 1044 , 1047-1048 [3d Dept 2022], lv denied 38 NY3d 1150 [2022]) and, in any event, lacks merit. His statements to the girlfriend could reasonably be interpreted as admissions of guilt, such that they constitute direct evidence, thereby obviating the need for a circumstantial evidence instruction ( see People v Rosner , 67 NY2d 290, 295 [1986]; People v Ash , 162 AD3d 1318 , 1322 [3d Dept 2018], lv denied 32 NY3d 1002 [2018]; People v Barnes , 162 AD2d 1039, 1040 [4th Dept 1990], lv denied 76 NY2d 890 [1990]; People v Emery , 159 AD2d 992, 992 [4th Dept 1990], lv denied 76 NY2d 787 [1990]). Furthermore, even accepting for argument's sake defendant's claim that his statements to the girlfriend should be characterized as circumstantial because he did not specifically identify the victim, we note that any error in not giving the circumstantial evidence charge would be harmless given that the trial evidence \"was overwhelming and there simply was no reasonable possibility, let alone significant probability[,] that the jury would have acquitted here if the circumstantial evidence charge had been given\" ( People v Hilton , 185 AD3d 1147 , 1151 [3d Dept 2020] [internal quotation marks, brackets and citation omitted], lv denied 35 NY3d 1095 [2020]). Defendant's related argument that he received ineffective assistance of counsel by virtue of his trial attorney neglecting to request a circumstantial evidence charge is unpersuasive, as counsel will not be faulted for failing to make an application that has little or no chance of success ( see People v Bonaparte , 196 AD3d 866 , 870 [3d Dept 2021], lv denied 37 NY3d 1025 [2021]; People v Sabines , 121 AD3d 1409 , 1412 [3d Dept 2014], lv denied 25 NY3d 1171 [2015]). Regarding defendant's remaining contentions, including his other claims of ineffective assistance as well as his claim centering on hearsay, we have reviewed them and find them to be without merit. Pritzker, J.P., Reynolds Fitzgerald, McShan and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: Lall was also charged with life settlement fraud in the second degree. Footnote 2: In its final jury charge, County Court gave the jury an accomplice in fact instruction ( see CPL 60.22). "
},
{
"from": "gpt",
"value": "Defendant's girlfriend who testified against him at the Murder 1 trial\ndeemed by trial court to be an accomplice as a matter of law. App. Div.\nrejected his argument that her testimony was not adequately corroborated.\nAccomplice corroboration evidence is sufficient if it \"tends to connect the\ndefendant with the commission of the crime in such a way as to reasonably\nsatisfy the jury that the accomplice is telling the truth\" (citations omitted)\nHere, even though the jury could have found the girlfriend to be an\naccomplice, evidence obtained from \"cell phone records, cell site location\ndata, license plate readers, surveillance cameras and eavesdropping\nwarrants provided sufficient corroboration.\n\""
}
]
|
2024.06356 | [
{
"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 Dyce 2024 NY Slip Op 06356 [233 AD3d 890] 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 Tajah Dyce, Appellant. Twyla Carter, New York, NY (Jody Ratner of counsel), and Kramer Levin Naftalis & Frankel LLP, New York, NY (Brian Hilburn of counsel), for appellant (one motion filed). Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Michael Bierce of counsel; Ruth Reid on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Dena E. Douglas, J.), imposed October 27, 2022, upon his plea of guilty, on the ground that the sentence was excessive. Ordered that the sentence is affirmed. The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Thomas , 34 NY3d 545 [2019]; People v Lopez , 6 NY3d 248 [2006]). Contrary to the defendant's contention, the Supreme Court neither mischaracterized the finality of the appeal waiver nor failed to explain the nature of an appeal. The court's colloquy followed, almost verbatim, the model colloquy for the waiver of the right to appeal drafted by the Unified Court System's Criminal Jury Instructions and Model Colloquy Committee, the use of which has been endorsed by this Court in People v Batista (167 AD3d 69 , 76-78 [2018]) and by the Court of Appeals in People v Thomas (34 NY3d at 566-567). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive ( see People v Lopez , 6 NY3d at 255). Barros, J.P., Miller, Voutsinas and Love, JJ., concur."
},
{
"from": "gpt",
"value": "In upholding the validity of the waiver, App. Div. noted that \"[t]he trial\ncourt's colloquy followed, almost verbatim, the model colloquy for the\nwaiver of the right to appeal drafted by the Unified Court System's\nCriminal Jury Instructions and Model Colloquy Committee....\n\""
}
]
|
2024.06605 | [
{
"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 Dixon 2024 NY Slip Op 06605 [233 AD3d 1026] December 24, 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 Tysean Dixon, Appellant. Margaret M. Walker, Poughkeepsie, NY (Seth J. Gallagher of counsel), for appellant. Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Amie M. Johnson of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered November 28, 2022, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. Ordered that the judgment is affirmed. The record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, as the County Court did not discuss the appeal waiver with the defendant until after he had already fully admitted his guilt as part of the plea agreement ( see People v Frank , 223 AD3d 683 , 683 [2024]; People v Adyl K. , 187 AD3d 1208 [2020]). In light of this failure, and considering the defendant's young age and lack of criminal history, the record does not establish that the defendant understood the nature of the appellate rights he was waiving at the time he entered his plea of guilty ( see People v Frank , 223 AD3d at 683; People v Adyl K. , 187 AD3d at 1209). Thus, the purported waiver does not preclude appellate review of the defendant's claim that the court improvidently exercised its discretion in denying him youthful offender status ( see People v Green , 205 AD3d 1051 , 1052 [2022]; People v McEachern , 163 AD3d 850 , 850-851 [2018]). \"The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case\" ( People v Green , 205 AD3d at 1052; see People v Kostyk , 222 AD3d 880 , 880 [2023]). \" 'In making such a determination, factors to be considered by the court include the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant's prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant's reputation, the level of cooperation with authorities, defendant's attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life' \" ( People v Kostyk , 222 AD3d at 880, quoting People v Sutton , 184 AD3d 236 , 246 [2020]; see People v Johnson , 217 AD3d 682 , 683 [2023]). Here, contrary to the defendant's contention, the County Court providently exercised its discretion in denying the defendant youthful offender status ( see CPL 720.20 [1]; People v Kostyk , 222 AD3d at 880; People v Johnson , 217 AD3d at 683). Inasmuch as the defendant's purported waiver of the right to appeal was invalid, it [*2] does not preclude appellate review of his excessive sentence claim. However, the sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 [1982]). Miller, J.P., Christopher, Voutsinas and Ventura, JJ., concur."
},
{
"from": "gpt",
"value": "County Court did\nnot discuss the waiver of appeal with defendant until after he had already\nfully admitted his guilt as part of the plea agreement [see, e.g., People v\nFrank, 223 AD3d 683]. In light of this failure, and considering the\ndefendant's young age and lack of criminal history, the record does not\nestablish that the defendant understood the nature of the appellate rights he\nwas waiving at the time he entered his plea of guilty."
}
]
|
2024.04691 | [
{
"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 Figueroa 2024 NY Slip Op 04691 [230 AD3d 1581] September 27, 2024 Appellate Division, Fourth 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 Nelson E. Figueroa, Jr., Appellant. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Allison V. McMahon of counsel), for defendant-appellant. Kevin T. Finnell, District Attorney, Batavia (William G. Zickl of counsel), for respondent. Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered November 24, 2020. The judgment convicted defendant upon a plea of guilty of predatory sexual assault against a child (two counts), sexual abuse in the first degree, and endangering the welfare of a child. It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating that part of the sentence awarding restitution and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, two counts of predatory sexual assault against a child (Penal Law former § 130.96), arising from defendant's repeated sexual abuse of his girlfriend's daughter (victim). Contrary to defendant's contention and the People's incorrect concession ( see People v Berrios , 28 NY2d 361, 366-367 [1971]; People v Edmonds , 229 AD3d 1275 , 1276 [4th Dept 2024]; People v Morrison , 179 AD3d 1454 , 1455 [4th Dept 2020], lv denied 35 NY3d 972 [2020]), the record establishes that defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see Edmonds , 229 AD3d at 1276-1277; People v Giles , 219 AD3d 1706 , 1706-1707 [4th Dept 2023], lv denied 40 NY3d 1039 [2023]; see generally People v Thomas , 34 NY3d 545 , 559-564 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; People v Lopez , 6 NY3d 248 , 256 [2006]). We note that County Court used the appropriate model colloquy with respect to the waiver of the right to appeal ( see NY Model Colloquies, Waiver of Right to Appeal, https://www.nycourts.gov/judges/cji/8-Colloquies/Waiver_of_Right_to_Appeal.pdf; see generally Thomas , 34 NY3d at 567; Edmonds , 229 AD3d at 1277; Giles , 219 AD3d at 1706). Contrary to defendant's assertion, the court did not mischaracterize the appeal waiver as \"an absolute bar to the taking of a first-tier direct appeal\" ( Thomas , 34 NY3d at 558; see Edmonds , 229 AD3d at 1277; see also People v Wilson , 217 AD3d 1561 , 1562 [4th Dept 2023], lv denied 40 NY3d 1000 [2023]; People v Cromie , 187 AD3d 1659 , 1659 [4th Dept 2020], lv denied 36 NY3d 971 [2020]). Instead, the court followed the model colloquy nearly verbatim, explaining that defendant retained the right to take an appeal, but that his conviction and sentence would, \"as a practical matter,\" \"be final\" because he was giving up the right to appellate review of \"most claims of error,\" including claims regarding the severity of the sentence but excluding the \"limited claims\" that survive an appeal waiver, such as those relating to the voluntariness of the plea, the validity of the appeal waiver, and the legality of the sentence ( see Thomas , 34 NY3d at 567; Edmonds , 229 AD3d at 1277; People v Jackson , 198 AD3d 1317 , 1318 [4th Dept 2021], lv denied 37 NY3d 1096 [2021]). Contrary to defendant's further assertion, the record establishes that defense counsel had already \"take[n] a few minutes\" to discuss with defendant the appeal waiver required to obtain the court's sentencing commitment; the record also establishes that, upon an inquiry by the court consistent with the model colloquy, defendant confirmed that he had discussed waiving his right to appeal with defense counsel ( see NY Model Colloquies, Waiver of Right to Appeal, https://www.nycourts.gov/judges/cji/8-Colloquies/Waiver_of_Right_to_Appeal.pdf; see generally Thomas , 34 NY3d at 560). Any deficiency by the court in ascertaining on the record defendant's understanding of the contents of the written waiver ( see [*2] Thomas , 34 NY3d at 563, 566; People v Bradshaw , 18 NY3d 257 , 266-267 [2011]; People v Callahan , 80 NY2d 273, 283 [1992]) is of no moment where, as here, the oral waiver was adequate ( see Lopez , 6 NY3d at 257; People v Witherow , 203 AD3d 1595 , 1595-1596 [4th Dept 2022]; People v Thomas , 178 AD3d 1461 , 1461 [4th Dept 2019], lv denied 35 NY3d 945 [2020]; People v Smith , 164 AD3d 1621 , 1621 [4th Dept 2018], lv denied 32 NY3d 1177 [2019]). In further seeking to invalidate the appeal waiver, defendant encourages us to apply the rule created by the Second Department that where, as here, the inclusion of the appeal waiver as part of a plea agreement is demanded by the court rather than the People, the appeal waiver is unenforceable if the court fails to sufficiently articulate the reasons for its demand ( see People v Sutton , 184 AD3d 236 , 244-245 [2d Dept 2020], lv denied 35 NY3d 1070 [2020]). We have \"not adopted the Second Department's requirement that the court articulate a reason for requiring a[n appeal] waiver in a . . . plea proceeding\" ( People v Dilworth , 189 AD3d 636 , 637 [1st Dept 2020], lv denied 36 NY3d 1096 [2021], denied reconsideration 37 NY3d 964 [2021]). In any event, the court here, unlike the court in Sutton , included the appeal waiver as a condition of the plea offer prior to accepting defendant's plea and articulated on the record that the appeal waiver was required in order for defendant to secure the benefit of the sentencing limitation promised by the court ( see id. ; see also People v Guerrero , 194 AD3d 1258 , 1259 [3d Dept 2021], lv denied 37 NY3d 992 [2021]). Defendant's valid waiver of the right to appeal precludes our review of his challenge to the severity of the incarceration component of his sentence ( see Lopez , 6 NY3d at 255-256; Witherow , 203 AD3d at 1596). Next, defendant challenges the court's imposition of restitution on the ground that the girlfriend's request therefor was not based on any actual out-of-pocket loss that qualifies as a valid basis for restitution. We note at the outset that defendant's challenge to the restitution component of his sentence survives his valid waiver of the right to appeal inasmuch as restitution was not included in the terms of the plea agreement ( see Witherow , 203 AD3d at 1596; People v McBean , 192 AD3d 1706 , 1707 [4th Dept 2021], lv denied 37 NY3d 958 [2021]; People v Rodriguez , 173 AD3d 1840 , 1841 [4th Dept 2019], lv denied 34 NY3d 953 [2019]). We further note that defendant preserved his challenge for appellate review by objecting to the imposition of restitution on the same ground he now advances ( see People v Richardson , 173 AD3d 1859 , 1860-1861 [4th Dept 2019], lv denied 34 NY3d 953 [2019], denied reconsideration 34 NY3d 1081 [2019]). The girlfriend requested restitution for the unpaid balance of rent for the house she had shared with defendant and for a bill for garbage and recycling collection that was not yet due. The People argued that the girlfriend was entitled to restitution for those expenses because, according to the girlfriend's statements, defendant's offenses caused the victim emotional and psychological harm and caused the girlfriend stress that resulted in serious health issues and several hospitalizations, all of which rendered her unable to work, thereby ultimately resulting in financial hardship and her inability to pay the claimed household expenses. The court, over defense counsel's objection that the claimed expenses were not directly caused by defendant's offenses, imposed the requested restitution. That was error. \"Penal Law § 60.27 (1) addresses the related concepts of restitution and reparation, allowing a court to order a defendant to 'make restitution of the fruits of [their] offense or reparation for the actual out-of-pocket loss caused thereby' \" ( People v Horne , 97 NY2d 404, 410 [2002]; see People v Connolly , 27 NY3d 355 , 359 [2016]; Witherow , 203 AD3d at 1596). Restitution and reparation may be required for expenses that \"were not voluntarily incurred, but stem from legal obligations that are directly and causally related to the crime\" ( People v Cruz , 81 NY2d 996, 998 [1993]; see People v Johnson , 125 AD3d 1419 , 1421 [4th Dept 2015], lv denied 26 NY3d 1089 [2015]). Conversely, the statute \"does not impose a duty on the defendant to pay for the costs associated [ ]with . . . expenses [that] are not directly caused by the defendant's crime\" ( People v Case , 214 AD3d 1379 , 1381 [4th Dept 2023]). Here, we conclude that the claimed expenses do not constitute \"actual out-of-pocket loss caused\" by defendant's offenses (Penal Law § 60.27 [1]) inasmuch as the girlfriend's unpaid rent and utility bill are costs \"not directly caused by . . . defendant's crime[s]\" ( Case , 214 AD3d at 1381). Contrary to the People's assertion, the girlfriend's request did not constitute a claim for [*3] lost wages directly caused by defendant's offenses ( cf. People v Robinson , 133 AD3d 1043 , 1044 [3d Dept 2015], lv denied 27 NY3d 1154 [2016]). We therefore modify the judgment accordingly. Present—Smith, J.P., Bannister, Montour, DelConte and Hannah, JJ."
},
{
"from": "gpt",
"value": "In\nupholding defendant's guilty plea, the 4th Department declined to adopt\n2nd Department rule that, if the trial court makes a waiver of appeal a\ncondition of a a plea, the court Court must place its reasons for doing so on\nthe record."
}
]
|
2024.05188 | [
{
"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 Perez 2024 NY Slip Op 05188 [231 AD3d 599] October 22, 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 Jose Perez, Appellant. Twyla Carter, The Legal Aid Society, New York (Isabel Patkowski of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Jonathan Sclar of counsel), for respondent. Judgment, Supreme Court, Bronx County (George R. Villegas, J.), rendered November 17, 2022, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed. Defendant made a valid waiver of his right to appeal ( see People v Thomas , 34 NY3d 545 [2019], cert denied 589 US — [2020]). The combination of the court's oral colloquy with defendant and the detailed written waiver that he signed after consultation with counsel satisfied the requirements of a valid waiver. This waiver forecloses review of his challenge to the issuance of an order of protection ( People v Key , 222 AD3d 536 , 536 [1st Dept 2023], lv denied 41 NY3d 943 [2024]; People v Frasqueri , 193 AD3d 464 , 464 [1st Dept 2021], lv denied 37 NY3d 965 [2021]). In any event, defendant failed to preserve his challenge to the order of protection ( see People v Nieves , 2 NY3d 310 , 315-317 [2004]; see also Key , 222 AD3d at 537; Frasqueri , 193 AD3d at 464), and we decline to review his claim in the interest of justice. As an alternative holding, we find that the record sufficiently reflected the reasons for the imposition of the order ( People v Key , 222 AD3d at 537; People v Gonzalez , 178 AD3d 440 , 440 [1st Dept 2019], lv denied 35 NY3d 941 [2020]). Concur—Webber, J.P., Friedman, Mendez, Shulman, O'Neill Levy, JJ."
},
{
"from": "gpt",
"value": "Valid\nwaiver of appeal forecloses consideration of defendant's challenge to the\nissuance of an order of protection."
}
]
|
2024.06084 | [
{
"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 Hensleigh 2024 NY Slip Op 06084 [233 AD3d 1105] 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] The People of the State of New York, Respondent, v Jordan Hensleigh, Appellant. Steven M. Sharp, Albany, for appellant. Karen A. Heggen, District Attorney, Ballston Spa (Jesse L. Ashdown of counsel), for respondent. Ceresia, J. Appeal from judgment of the County Court of Saratoga County (Chad W. Brown, J.), rendered August 10, 2023, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree. Defendant was charged by indictment with two counts of assault in the second degree stemming from an altercation in court during which defendant, who had been informed that there was an active warrant authorizing his arrest, resisted being detained by court officers, one of whom sustained injuries during the incident. In an omnibus motion, defendant subsequently moved to dismiss the indictment on several grounds, including that there exists a legal impediment to conviction ( see CPL 210.20 [1] [h]). That is, defendant alleged that the court officers were not performing a lawful duty, as required to establish his commission of the charged crimes, [FN*] because they had no authority to execute an arrest warrant. The People opposed the motion, and County Court denied it. Thereafter, in full satisfaction of the indictment as well as another unrelated indictment charging defendant with family offenses, defendant pleaded guilty, as relevant here, to the reduced charge of attempted assault in the second degree and waived his right to appeal. Defendant was subsequently sentenced by County Court, as a second felony offender with a prior violent felony, to a prison term of 2 to 4 years, which was ordered to run consecutive to an unrelated prison term. Defendant appeals. As an initial matter, defendant's argument is properly before us despite his plea of guilty and waiver of the right to appeal. Contrary to the People's contention, defendant is not challenging the legal sufficiency of the grand jury evidence or the factual sufficiency of his plea allocution. Rather, defendant asserts that there is a legal impediment to prosecution, in that \"there is no set of facts that could be proved, or to which a defendant could plead, that would establish guilt of [the charged crime] upon the theory alleged\" ( People v Plunkett , 19 NY3d 400 , 407 [2012]). Such a challenge is not forfeited by a guilty plea ( see id .). Further, a legal impediment argument is akin to a claim of a jurisdictional defect, which is not foreclosed by an appeal waiver ( see People v Wheeler , 216 AD3d 1314 , 1316 [3d Dept 2023], lv denied 40 NY3d 1082 [2023]). Turning to the merits, the record reveals that, while defendant was present in Family Court for an unrelated matter, defendant and his attorney were advised by court officers that there was an outstanding warrant for his arrest and that, following the court proceeding, he would be held in a secure area to await the arrival of the police. When defendant's matter concluded and he started to leave the courtroom, another court officer told him, \"[t]here's a warrant for your arrest. I need to detain you.\" At that point, defendant started to push past two court officers, and he was tackled to the ground. In the course of this struggle, a court officer [*2] suffered physical injuries. The police, who were already on the scene, immediately placed defendant under arrest pursuant to the arrest warrant. A peace officer, of which a uniformed court officer is one type ( see CPL 2.10 [21] [a]), \"in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody\" (Penal Law § 35.30 [1]). Here, the court officers had the requisite reasonable belief that defendant had committed an offense by virtue of their knowledge that an arrest warrant had been issued. That said, they possessed the lawful authority under Penal Law § 35.30 (1) to utilize physical force to temporarily detain defendant in order to facilitate the arrest by the police who were present for that purpose ( compare People v Borrero , 118 AD2d 345, 350 [1st Dept 1986] [holding that, under a similar statutory provision pertaining to private citizens, an individual had the authority to detain another, using physical force, until police arrived]). In so holding, we are mindful that, given the wide-ranging contexts in which they serve ( see CPL 2.10 [1]-[86]), peace officers are acknowledged to have \"special duties\" that are unique to \"the specialized nature of [an officer's] particular employment\" (CPL 2.20 [2]). In our view, the temporary detention carried out in this case was not inconsistent with the specialized nature of a uniformed court officer's particular employment. Based upon the foregoing, defendant's argument that there is a legal impediment to his conviction is without merit. Clark, J.P., Pritzker, Reynolds Fitzgerald and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: As relevant here, \"[a] person is guilty of assault in the second degree when . . . [w]ith intent to prevent a peace officer . . . from performing a lawful duty, . . . he or she causes physical injury to such peace officer\" (Penal Law § 120.05 [3]). \"To sustain such a conviction, the People must establish that the injured [peace officer] was engaged in a lawful duty at the time of the assault by the defendant\" ( People v Molineaux , 156 AD3d 1250 , 1251 [3d Dept 2017] [internal quotation marks and citations omitted], lv denied 31 NY3d 1085 [2018]). "
},
{
"from": "gpt",
"value": "Waiver of appeal does not foreclose appellate review of defendant's claim\nof legal impediment to prosecution. Such a contention is akin to a claim of\na jurisdictional defect, which is not foreclosed by an appeal waiver."
}
]
|
2024.03200 | [
{
"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 Vargas 2024 NY Slip Op 03200 [42 NY3d 983] June 13, 2024 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 27, 2024 [*1] The People of the State of New York, Appellant, v Nolberto Contreras Vargas, Respondent. Decided June 13, 2024 People v Vargas , 211 AD3d 1046 , reversed. APPEARANCES OF COUNSEL Melinda Katz , District Attorney , Kew Gardens ( Joseph M. DiPietro of counsel), for appellant. Patricia Pazner , Appellate Advocates , New York City ( Anna Jouravleva of counsel), for respondent. {**42 NY3d at 983} OPINION OF THE COURT Memorandum. {**42 NY3d at 984} The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and issues raised but not determined on appeal to that Court. Following an incident in which defendant allegedly attacked his wife with a knife, severely injuring her in both the neck and chest, defendant was charged with attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and assault in the first degree (Penal Law § 120.10 [1] [defendant, \"(w)ith intent to cause serious physical injury to another person, . . . causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument\"]). At trial, the primary disputed issue was intent. The jury convicted defendant of first-degree assault and acquitted him of attempted murder. The Appellate Division reversed and ordered a new trial, concluding that police testimony recounting out-of-court statements by the victim's daughter describing the attack violated defendant's Sixth Amendment right to confrontation, and the admission was not harmless (211 AD3d 1046 [2d Dept 2022]). The Court further noted that two other statements, one by a 911 caller stating that the victim had been stabbed and another by defendant's son indicating that defendant was the attacker, had been admitted in violation of the hearsay rule, but did not consider whether admission of those two statements was harmless. One Justice dissented, agreeing that the testimony recounting the daughter's statements violated the Confrontation Clause but concluding that the admission of all three statements was harmless. The dissenting Justice granted leave to appeal. [*2] [1] Before this Court, the parties primarily focus on whether the erroneous admission of testimony reflecting the daughter's statements was harmless. Applying the standard for constitutional errors, we conclude that it was. The evidence against defendant was overwhelming, particularly as it related to the critical issue of intent ( see People v Mairena , 34 NY3d 473 , 484-485 [2019], citing People v Crimmins , 36 NY2d 230, 241 [1975]). Properly admitted evidence demonstrated that the victim and her daughter fled the home seeking help immediately after the attack; one of them called defendant the \"culprit\" as he attempted to flee; defendant had to be physically subdued by a bystander until his arrest; both women told several witnesses that defendant \"stabbed\" the victim; the weapon used was a large, sharp knife; medical records reflect {**42 NY3d at 985} that the victim reported to hospital staff that her husband had stabbed her; and those records, as well as a treating physician's testimony, demonstrate that the victim sustained two serious knife wounds to the neck and chest, both over two inches in length and one of which was a direct stabbing so forceful that it fractured her breastbone. These facts leave no doubt that defendant acted with the intent to cause the victim serious physical injury. For that reason, the properly admitted evidence rendered the improper testimony recounting the daughter's description of the attack redundant and therefore harmless, as \"there is no reasonable possibility that the error might have contributed to defendant's conviction\" ( Crimmins , 36 NY2d at 237; see also People v Douglas , 4 NY3d 777 , 779 [2005]). [2] The errors in admission of statements by the 911 caller and defendant's son were also harmless and do not warrant a new trial. Because the statements supplied information properly provided to the jury through several testifying witnesses and the victim's medical records, there is no \"significant probability . . . that the jury would have acquitted the defendant had it not been for\" their admission ( Mairena , 34 NY3d at 485, quoting Crimmins , 36 NY2d at 242). Judges Garcia, Singas, Cannataro, Troutman and Halligan concur. Chief Judge Wilson and Judge Rivera dissent and vote to affirm for the reasons stated in the Appellate Division memorandum ( see People v Vargas , 211 AD3d 1046 [2d Dept 2022]). On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on appeal to that Court, in a memorandum."
},
{
"from": "gpt",
"value": "Police officer\nshould not have testified to daughter's description of the attack upon her\nmother. But properly admitted evidence rendered the improper testimony\nredundant, and therefore harmless. Conviction reinstated."
}
]
|
2024.05818 | [
{
"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 Williams 2024 NY Slip Op 05818 [42 NY3d 1049] November 21, 2024 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. [*1] The People of the State of New York, Respondent, v Brandon Williams, Appellant. Argued October 16, 2024; decided November 21, 2024 People v Williams , 204 AD3d 704 , affirmed. APPEARANCES OF COUNSEL Twyla Carter, The Legal Aid Society , New York City ( Steven R. Berko of counsel), and Latham & Watkins LLP , New York City ( Jonathan Lippman, Richard D. Owens, Sara Gail Prudenti, Caroline C. Marshall, Alon Handler, Juan M. Palacio Moreno and Lydia Franzek of counsel), for appellant. Melinda Katz, District Attorney , Kew Gardens ( Christopher J. Blira-Koessler and John M. Castellano of counsel), for respondent. {**42 NY3d at 1049} OPINION OF THE COURT Memorandum. The order of the Appellate Division should be affirmed. Assuming, without deciding, that the introduction of codefendant's statement was a Bruton error ( see Bruton v United States , 391 US 123 [1968]), any such error was harmless. The evidence of defendant's guilt, specifically the incriminating testimony of two acquaintances who were eyewitnesses to the {**42 NY3d at 1050} crime, was overwhelming and there is no reasonable possibility that the admission of codefendant's statement affected the verdict ( see People v Cedeno , 27 NY3d 110 , 121-122 [2016]; People v Hardy , 4 NY3d 192 , 198 [2005]; People v Crimmins , 36 NY2d 230, 241 [1975]). Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur. Order affirmed, in a memorandum."
},
{
"from": "gpt",
"value": "\"Assuming, without deciding, that the introduction of codefendant’s\nstatement was a Bruton error, any such error was harmless. The evidence\nof defendant’s guilt, specifically the incriminating testimony of two\nacquaintances who were eyewitnesses to the crime, was overwhelming and\nthere is no reasonable possibility that the admission of codefendant’s statement affected the verdict.\n\""
}
]
|
2024.04003 | [
{
"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 Wendy B.-S. 2024 NY Slip Op 04003 [229 AD3d 1317] July 26, 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 Wendy B.-S., Appellant. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan Hutchison of counsel), for defendant-appellant. Michael J. Keane, Acting District Attorney, Buffalo (Harmony A. Healy of counsel), for respondent. Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), dated September 17, 2020. The order denied the application of defendant for resentencing pursuant to CPL 440.47. It is hereby ordered that the order so appealed from is unanimously affirmed. Memorandum: Defendant was convicted in November 1989, upon a jury verdict, of murder in the second degree (Penal Law § 125.25 [1]) and two counts of intimidating a victim or witness in the first degree (§ 215.17 [1], [2]). The conviction arose from defendant's conduct in aiding her then-husband in the bludgeoning death of a friend, who had been cooperating with authorities by implicating defendant and her husband in other crimes, by calling the friend and luring him to the house where he was killed. Defendant was sentenced to concurrent terms of incarceration aggregating to 25 years to life. We affirmed defendant's judgment of conviction on direct appeal ( People v Smythe , 172 AD2d 1028 [4th Dept 1991], lv denied 78 NY2d 927 [1991]), and we later also affirmed the husband's judgment of conviction arising from the murder ( People v Smythe , 210 AD2d 887 [4th Dept 1994], lv denied 85 NY2d 943 [1995]). Defendant remained incarcerated in April 2020 when she applied for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) ( see CPL 440.47; Penal Law § 60.12, as amended by L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW, § 1), but she was subsequently released to parole supervision in September 2020. Supreme Court thereafter denied her application for resentencing pursuant to the DVSJA, and defendant now appeals as of right ( see CPL 440.47 [3] [a]). We affirm. \"The DVSJA, without diminishing the gravity of an offense, permits courts to impose alternative, less severe sentences in certain cases involving defendants who are victims of domestic violence\" ( People v Fisher , 221 AD3d 1195 , 1196 [3d Dept 2023], lv denied 41 NY3d 1001 [2024]; see CPL 440.47; Penal Law § 60.12; People v Vilella , 213 AD3d 1282 , 1283 [4th Dept 2023], lv denied 39 NY3d 1157 [2023]). A defendant who is confined while serving a sentence of a certain length for an offense committed prior to the effective date of the DVSJA and is eligible for an alternative sentence may request to apply for resentencing in accordance with Penal Law § 60.12 ( see CPL 440.47 [1] [a]; People v Shawn G.G. , 225 AD3d 1246 , 1247 [4th Dept 2024]). If 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 ( see CPL 440.47 [1] [c]). An application for resentencing must include certain pieces of evidence pursuant to the provisions of CPL 440.47 (2) (c) and, if the court finds that the defendant has complied with those provisions, it must \"conduct a hearing to aid in making its determination of whether the applicant should be resentenced in accordance with [Penal Law § 60.12]\" (CPL 440.47 [2] [e]; see Fisher , 221 AD3d at 1196). The court may impose an alternative sentence where it determines, upon a preponderance of the evidence following the [*2] hearing, that \"(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant as such term is defined in [CPL 530.11 (1)]; (b) such abuse was a significant contributing factor to the defendant's criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06 or 70.71 (2) or (3)] would be unduly harsh\" (Penal Law § 60.12 [1]; see Fisher , 221 AD3d at 1196-1197; People v T.P. , 216 AD3d 1469 , 1471-1472 [4th Dept 2023]; People v Addimando , 197 AD3d 106 , 112 [2d Dept 2021]). There is no dispute in this case that, at the time of the underlying offenses, defendant was \"a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by\" the husband (Penal Law § 60.12 [1] [a]; see T.P. , 216 AD3d at 1471-1472). As the court properly determined and defendant correctly contends, there is ample evidence in the record that the husband, who was manipulative and controlling, subjected defendant to numerous acts of physical brutality, as well as emotional and psychological abuse, including threatening to harm defendant's young son from another relationship. Defendant thus indisputably fulfilled the first prong of the statutory analysis ( see § 60.12 [1] [a]). The court nonetheless further determined under the second prong of Penal Law § 60.12 (1) that the abuse suffered by defendant was not a significant contributing factor to her criminal behavior related to the victim's death. We agree with defendant that the court erred in that regard. In evaluating whether the abuse was \"a significant contributing factor to the defendant's criminal behavior\" (§ 60.12 [1] [b]), a court should \"consider the cumulative effect of the abuse together with the events immediately surrounding the crime, paying particular attention to the circumstances under which [the] defendant was living and adopting a 'full picture' approach in its review\" ( People v Smith , 69 Misc 3d 1030 , 1038 [Erie County Ct 2020]; see People v Brenda WW. , 222 AD3d 1188 , 1192-1193 [3d Dept 2023], citing Smith , 69 Misc 3d at 1038; People v Burns , 207 AD3d 646 , 648-649 [2d Dept 2022]). Here, we agree with defendant that the cumulative effect of the husband's abuse, along with the events immediately surrounding the crimes, demonstrates that the abuse was a significant contributing factor to defendant's conduct in calling the victim and luring him to the house. The husband had repeatedly and violently abused defendant throughout their relationship, and defendant feared for the safety of herself and her son. The record establishes that defendant—whether out of fear of harm at the hands of the husband or as the result of actual threats and physical harm inflicted on the day of the murder—complied with the husband's demand that she call the victim, with whom she was a close friend, and invite him to the house. In sum, upon \"[c]onsidering the cumulative effect of . . . defendant's abuse at the hands of [the husband], together with the events immediately surrounding the crimes, and paying particular attention to the circumstances under which . . . defendant was living,\" we conclude that \"the preponderance of the evidence demonstrates that the [husband's] abuse was a [significant] contributing factor to [defendant's criminal behavior related to] the murder of [the victim]\" ( Burns , 207 AD3d at 648-649). None of the court's reasons for reaching a contrary conclusion survive scrutiny. First, contrary to the court's conclusion that defendant's alcohol and drug abuse at the time of the crimes established that her conduct could not be attributed to the abuse, we conclude that \"such factors do not negate the aforementioned history of abuse suffered by defendant and whether it played a significant role in her behavior\" ( Brenda WW. , 222 AD3d at 1192). Second, the court's determination that defendant could not credibly claim that the domestic abuse she endured was a significant contributing factor to her criminal behavior because she had, over the years, given minimally inconsistent accounts of her role in the victim's death, cannot be reconciled with the modern understanding of the effects of domestic violence as both embodied in the DVSJA and emphasized by defendant's trauma counselor at the hearing ( see People v Liz L. , 221 AD3d 1288 , 1291 [3d Dept 2023]; see generally Deborah Epstein & Lisa A. Goodman, Discounting Women: Doubting Domestic Violence Survivors' Credibility and Dismissing Their Experiences , 167 U Pa L Rev 399, 405-406 [2019]). Third, the court's reliance on the trial court's pontification during the original sentencing proceeding that defendant had manipulated and controlled the husband, not the other way around, is misplaced because, as defendant contends, that interpretation of the relationship lacks support in the record before us and appears grounded in \"outdated notions [*3] regarding domestic violence issues\" ( Addimando , 197 AD3d at 117). Nevertheless, we conclude that defendant is not entitled to resentencing pursuant to the DVSJA because, under the third prong of the statutory analysis, the original sentence is not \"unduly harsh\" in light of the \"nature and circumstances of the crime and the history, character and condition of the defendant\" (Penal Law § 60.12 [1] [c]; see Fisher , 221 AD3d at 1197-1198). The crimes for which defendant was convicted—i.e., aiding her husband in the fatal bludgeoning of the victim as reprisal for and prevention of the victim's cooperation with authorities in implicating defendant and the husband in other crimes—were as brutal as they were reprehensible ( see Fisher , 221 AD3d at 1197-1198). Although defendant has been somewhat inconsistent over the years about her precise knowledge of the husband's intentions for the victim at the time she placed the call to lure him to the location, the record before us establishes by a preponderance of the evidence that defendant knew, even if indirectly, that the victim was going to be killed. Additionally, despite some admirable accomplishments and engagement in services while incarcerated, defendant committed a remarkably extensive number of disciplinary violations while in prison, including for drug use. Inasmuch as defendant is no longer incarcerated and has been released to lifetime parole supervision, she seeks resentencing solely for the purpose of shortening the period—and ultimately relieving her—of postrelease supervision. However, defendant's criminal history, both before and during the relationship with the husband, and her continued difficulty in conducting herself appropriately as evinced by her extensive disciplinary history throughout her incarceration, coupled with her apparent success thus far while on supervision in the community, suggest that supervision continues to serve important purposes in defendant's case ( cf. People v S.M. , 72 Misc 3d 809 , 816 [Erie County Ct 2021]). Thus, although defendant has been released to parole supervision, given her criminal and disciplinary history as well as her need for services, we conclude that, contrary to defendant's contention, lifetime parole supervision does not render her sentence unduly harsh and she should not be resentenced pursuant to the DVSJA ( see People v Rangel , 195 AD3d 541 , 542 [1st Dept 2021], lv denied 37 NY3d 1098 [2021]). Finally, we note that our affirmance of the order on the aforementioned ground does not violate CPL 470.15 (1). The Court of Appeals has construed that statute as \"a legislative restriction on the Appellate Division's power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court\" ( People v LaFontaine , 92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]; see People v Butler , 41 NY3d 186 , 199 [2023]; People v Nicholson , 26 NY3d 813 , 825 [2016]). The statute thus \"bars [the Appellate Division] from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court\" ( People v Concepcion , 17 NY3d 192 , 195 [2011]; see Nicholson , 26 NY3d at 825). Consequently, \" LaFontaine and its progeny preclude our review of an entirely distinct alternative ground for affirmance which the court of first instance did not decide adversely to the appellant\" ( People v Garrett , 23 NY3d 878 , 885 n 2 [2014], rearg denied 25 NY3d 1215 [2015]). Critically, however, in cases involving consideration of \"a single multipronged legal ruling\" rather than a \"separate and analytically distinct\" alternative ground for affirmance that the trial court did not decide adversely to the appellant, LaFontaine and its progeny do not preclude our review of all aspects of the ruling even when the trial court did not address a particular prong thereof ( id. ; see People v Reynolds , 211 AD3d 1493 , 1494 [4th Dept 2022], lv denied 39 NY3d 1079 [2023]; People v Case , 197 AD3d 985 , 986 [4th Dept 2021], lv denied 37 NY3d 1160 [2022]). Here, the court's determination whether defendant should be resentenced pursuant to the DVSJA ( see CPL 440.47; Penal Law § 60.12) involves \"a single multipronged legal ruling\" ( Garrett , 23 NY3d at 885 n 2; see Penal Law § 60.12 [1]; Brenda WW. , 222 AD3d at 1193; Liz L. , 221 AD3d at 1290-1291; Addimando , 197 AD3d at 111). Thus, our determination affirming the order on the ground that defendant did not fulfill the third prong of the statutory analysis, which the court did not address given its determination on the second prong, does not constitute \"the type of appellate overreaching prohibited by CPL 470.15 (1)\" because such affirmance is not \"on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant's favor\" ( Nicholson , 26 NY3d at 826; see Garrett , 23 NY3d at 885 n 2; Reynolds , 211 AD3d at 1494; Case , 197 AD3d at 986). Present—Smith, J.P., Bannister, Montour, Greenwood and Nowak, JJ."
},
{
"from": "gpt",
"value": "[W]hether a defendant should be resentenced pursuant to the DVSJA (see\nCPL 440.47; Penal Law § 60.12) involves 'a single multipronged legal\nruling' [citations omitted].\n\" Consequently, the Appellate Division is not\nforeclosed from affirming the order denying relief on the ground that\ndefendant did not fulfill the third prong of the statutory analysis, i.e., was\nthe sentence unduly harsh [Penal Law § 60.12 (1) (c)] — which the trial\ncourt did not reach because it concluded that the domestic abuse was not\n\"a significant contributing factor to the defendant's criminal behavior\"\n[Penal Law 60.12 (1) (b)]. Such an affirmance \"is not 'on grounds\nexplicitly different from those of the trial court, or on grounds that were\nclearly resolved in a defendant's favor'[citations omitted].\n\""
}
]
|
2024.06478 | [
{
"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 Kirkey 2024 NY Slip Op 06478 [233 AD3d 1510] December 20, 2024 Appellate Division, Fourth 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 Christopher Kirkey, Appellant. James Eckert, Rochester, for defendant-appellant. Christine K. Callanan, District Attorney, Lyons (R. Michael Tantillo of counsel), for respondent. Appeal from a judgment of the Wayne County Court (Daniel G. Barrett, J.), rendered May 25, 2023. The judgment convicted defendant upon a jury verdict of driving while intoxicated (two counts), driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, aggravated vehicular homicide, vehicular manslaughter in the first degree, and manslaughter in the second degree (two counts). It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of driving while intoxicated as a misdemeanor (Vehicle and Traffic Law §§ 1192 [2], [3]; 1193 [1] [b] [i]), one count of aggravated vehicular homicide (Penal Law § 125.14 [4]), and two counts of manslaughter in the second degree (§ 125.15 [1]). Defendant contends that the verdict is against the weight of the evidence with respect to defendant's identity as the driver of the vehicle that crashed into a bridge abutment and ended up submerged in a creek, killing the other two occupants of the vehicle, a male and a female. The evidence at trial established that the vehicle belonged to defendant, and testimony and video surveillance showed him driving the vehicle approximately 10 minutes before the accident occurred ( see generally People v Kenny , 283 AD2d 950, 951 [4th Dept 2001], lv denied 96 NY2d 903 [2001]). After the accident, defendant was found on the bank of the creek on the driver's side of the vehicle, and the front driver's side door was open. The female occupant was found still buckled in the front passenger seat, and the body of the male occupant was recovered from the creek the following morning. The front right side of the vehicle struck the bridge abutment, and a reconstruction expert testified that such an impact would have accelerated the occupants of the vehicle toward the direction of that force. The evidence established that, although airbags in the vehicle had deployed, the vehicle's steering wheel was bent forward on the right side. The expert explained that, in light of how the steering wheel was bent, the driver could have sustained injuries to their left side from hitting the steering wheel. The female and male occupants sustained right-side injuries, and defendant sustained injuries to his chest and left side ( see People v Pascuzzi , 173 AD3d 1367 , 1372-1373 [3d Dept 2019], lv denied 34 NY3d 953 [2019]; People v Herrera , 138 AD3d 1141 , 1142-1143 [2d Dept 2016], lv denied 28 NY3d 971 [2016]). There was also testimony from a witness that the male occupant did not drive and that defendant would not let anyone borrow his vehicle. Additionally, swabbings from the steering wheel and subsequent DNA analysis showed two male contributors, with the major contributor being defendant and the male occupant being excluded as a possible contributor. Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence with respect to defendant's identity as the driver of the vehicle ( see People v Maricevic , 52 AD3d 1043 , 1046 [3d Dept 2008], lv denied 11 NY3d 790 [2008]; see generally People v Bleakley , 69 [*2] NY2d 490, 495 [1987]). Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot conclude that the jury failed to give the evidence the weight it should be accorded ( see generally Bleakley , 69 NY2d at 495). Defendant next contends that he was denied an effective summation when County Court sustained the People's objection and held that it agreed that defense counsel had mischaracterized a witness's testimony. That contention is unpreserved for our review inasmuch as defendant did not object to the court's ruling or comments as depriving him of his right to an effective summation ( see People v Gordon , 181 AD3d 1299 , 1300 [4th Dept 2020], lv denied 35 NY3d 1027 [2020]). In any event, his contention is without merit inasmuch as defense counsel had mischaracterized the witness's testimony regarding whether the male occupant's facial injuries were consistent with injuries sustained from an airbag ( see People v Bistonath , 216 AD2d 478, 479 [2d Dept 1995], lv denied 86 NY2d 790 [1995]; see generally People v Smith , 16 NY3d 786 , 787-788 [2011]; People v Ashwal , 39 NY2d 105, 109 [1976]). In addition, defense counsel was not prevented from making the general argument that an airbag could not be excluded as a possible cause of the male occupant's facial injuries ( see People v Kimmy , 137 AD3d 1723 , 1723-1724 [4th Dept 2016], lv denied 27 NY3d 1134 [2016]). Defendant's contention that two instances of prosecutorial misconduct during summation denied him a fair trial is not preserved for our review ( see People v Moorhead , 224 AD3d 1225 , 1227 [4th Dept 2024], lv denied 41 NY3d 1003 [2024]; People v King , 224 AD3d 1313 , 1314 [4th Dept 2024], lv denied 41 NY3d 1019 [2024]). In any event, we conclude that defendant's contention is without merit inasmuch as the alleged instances of prosecutorial misconduct constituted fair comment on the evidence ( see People v Townsend , 171 AD3d 1479 , 1481 [4th Dept 2019], lv denied 33 NY3d 1109 [2019]). Moreover, even assuming, arguendo, that the prosecutor mischaracterized the testimony, we conclude that the prosecutor's remarks were not so pervasive or egregious as to deny defendant a fair trial ( see People v Williams , 228 AD3d 1249 , 1249-1250 [4th Dept 2024]; King , 224 AD3d at 1314; People v Longo , 212 AD3d 471 , 472 [1st Dept 2023], lv denied 40 NY3d 935 [2023]). Defendant further contends that he was denied effective assistance of counsel. Contrary to defendant's contention, a review of the voir dire transcript in totality does not support his claim that defense counsel permitted defendant himself to choose the jury ( see People v Richardson , 143 AD3d 1252 , 1254-1255 [4th Dept 2016], lv denied 28 NY3d 1150 [2017]; cf. People v McKenzie , 142 AD3d 1279 , 1280 [4th Dept 2016]) or that defense counsel was not actively participating in the process ( cf. People v Bell , 48 NY2d 933, 934 [1979], rearg denied 49 NY2d 802 [1980]). We further reject defendant's claim that defense counsel was ineffective in failing to offer a legal basis for seeking the admission of certain allegedly exculpatory statements made by defendant or in failing to object when the court stated that defense counsel had mischaracterized certain testimony during summation. It is well settled that \"[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to 'make a motion or argument that has little or no chance of success' \" ( People v Caban , 5 NY3d 143 , 152 [2005], quoting People v Stultz , 2 NY3d 277 , 287 [2004], rearg denied 3 NY3d 702 [2004]). Defendant's allegedly exculpatory statements were self-serving and constituted inadmissible hearsay ( see People v Moses , 197 AD3d 951 , 954 [4th Dept 2021], lv denied 37 NY3d 1097 [2021], denied reconsideration 37 NY3d 1163 [2022]) and, as noted above, defense counsel had indeed mischaracterized a witness's testimony in summation. We reject defendant's further claim that defense counsel mishandled the issue of DNA evidence and was ineffective in eliciting certain testimony of a witness on cross-examination. \" '[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings\" ( People v Benevento , 91 NY2d 708, 712 [1998], quoting People v Rivera , 71 NY2d 705, 709 [1988]), and defendant failed to meet that burden here ( see People v Francis , 206 AD3d 1605 , 1606 [4th Dept 2022], lv denied 38 NY3d 1133 [2022]; People v Conley , 192 AD3d 1616 , 1620 [4th Dept 2021], lv denied 37 NY3d 1026 [2021]). In addition, inasmuch as we conclude that there was no prosecutorial misconduct during summation, we further conclude that defense counsel was not ineffective for failing to object to the alleged improprieties ( see Townsend , 171 AD3d at 1481). We have reviewed the remaining claims of ineffective assistance of counsel, and we conclude that, because \"the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional [*3] requirement [has] been met\" ( People v Baldi , 54 NY2d 137, 147 [1981]). We reject defendant's contention that the court erred in not making an inquiry into defendant's complaints about defense counsel at the close of the People's proof. Although defendant made complaints about the proof that was introduced or not introduced, defendant did not request new counsel and thus \"it cannot be said that the court erred in failing to conduct an inquiry to determine whether good cause was shown to substitute counsel\" ( People v Singletary , 63 AD3d 1654 , 1654 [4th Dept 2009], lv denied 13 NY3d 839 [2009]; see People v Martinez , 166 AD3d 1558 , 1558-1559 [4th Dept 2018]). In any event, \" 'the court afforded defendant the opportunity to express his objections concerning defense counsel, and the court thereafter reasonably concluded that defendant's objections were without merit' \" ( Martinez , 166 AD3d at 1559; see Singletary , 63 AD3d at 1654). Present—Smith, J.P., Curran, Montour, Greenwood and Keane, JJ."
},
{
"from": "gpt",
"value": "Affirmed. Defendant was not denied an effective summation when County\nCourt sustained the People's objection and held that it agreed that defense\ncounsel had mischaracterized a witness's testimony. Contention was\nunpreserved and, in any event, his contention was without merit inasmuch\nas defense counsel had mischaracterized the witness's testimony regarding\nwhether the male occupant's facial injuries were consistent with injuries\nsustained from an airbag. In addition, defense counsel was not prevented\nfrom making the general argument that an airbag could not be excluded as\na possible cause of the male occupant's facial injuries."
}
]
|
2024.06628 | [
{
"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 Grady 2024 NY Slip Op 06628 [233 AD3d 1369] December 26, 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] The People of the State of New York, Respondent, v Neshad Grady, Also Known as Moo Moo, Appellant. Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant. P. David Soares, District Attorney, Albany (Erin N. LaValley of counsel), for respondent. McShan, J. Appeals (1) from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered January 10, 2020, in Albany County, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree, and (2) from a judgment of said court, rendered January 10, 2020, in Albany County, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree. In November 2018, defendant was charged by indictment with one count of murder in the second degree and one count of criminal possession of a weapon in the second degree stemming from a July 2018 shooting in the City of Albany. Defendant was also indicted for criminal possession of a weapon in the second degree (count 3) stemming from a separate incident in November 2018. Following a jury trial on counts 1 and 2, defendant was convicted as charged. Defendant subsequently pleaded guilty to count 3 and was thereafter sentenced, as a second violent felony offender, on both the jury verdict and the subsequent guilty plea. As to the jury verdict, defendant was sentenced to a prison term of 25 years to life for murder in the second degree and a concurrent prison term of 15 years, to be followed by five years of postrelease supervision, for criminal possession of a weapon in the second degree. As to the plea, defendant was sentenced to a prison term of 10 years, to be followed by five years of postrelease supervision, to run concurrently to the sentence on the jury verdict. Defendant appeals. [FN1] We affirm. Defendant argues that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, primarily contending that the People failed to establish his identity as the perpetrator of the shooting beyond a reasonable doubt, which in turn demonstrates a lack of evidence that he possessed a loaded firearm. Relevant here, \"[a] person is guilty of murder in the second degree when . . . [w]ith intent to cause the death of another person, he [or she] causes the death of such person or of a third person\" (Penal Law § 125.25 [1]). \"A person is guilty of criminal possession of a weapon in the second degree when . . . such person possesses any loaded firearm\" outside of their home or business (Penal Law § 265.03 [3]). \"[A]s an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime\" ( People v Shabazz , 211 AD3d 1093 , 1095 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 NY3d 1113 [2023]; accord People v Alexander , 231 AD3d 1310 , 1311 [3d Dept 2024]). The evidence at trial established that, shortly after midnight on the night of the shooting, defendant was present in the convenience store of a gas station located at the corner of Quail Street and Clinton Avenue, adjacent to the site of the shooting. Footage from a City-owned camera that was [*2] set up at the intersection shows the victim in his vehicle pulling into the gas station, where he briefly stopped at a pump without exiting. Meanwhile, surveillance footage from the gas station combined with the aforementioned footage on the City-owned camera show an individual dressed in the same attire as defendant leave the parking lot and look back at the victim's vehicle momentarily before entering a house that belonged to a member of defendant's family. At that point, the video footage depicts the victim pulling out of the gas station and turning onto Clinton Avenue and then onto Quail Street. The victim's cousin testified that he was standing on Quail Street when he observed the victim's vehicle approaching, at which point he flagged the victim down and they engaged in a brief conversation while he stood on the passenger side of the vehicle. The video footage shows that, just before the victim stopped his vehicle, an individual wearing the same attire as defendant walks out of the home of defendant's family member. According to the cousin, he observed an individual approaching the vehicle and, before the cousin could warn the victim, the individual began firing a weapon into the vehicle, prompting the cousin and other bystanders to flee. The cousin identified defendant at trial as the shooter, stating that he knew him from the neighborhood. The cousin had also made a previous identification of defendant to law enforcement from a photo array that was introduced into evidence. After the shooting, the perpetrator fled through an alley located between the parking lot of the gas station and the home of defendant's family member. The forensic evidence at trial established that the victim suffered three gunshot wounds during the encounter, two of which were minor and the third, which perforated his lung and aorta causing a blood clot in his chest, proved fatal. Law enforcement also recovered shell casings near the victim's vehicle, but the weapon used in the shooting was never found. Based upon our review, we find that, \"when construing the evidence in the light most favorable to the People as we must, a rational person could conclude that the shooter's identity was sufficiently proven to be defendant\" ( People v Slivienski , 204 AD3d 1228 , 1234 [3d Dept 2022], lv denied 38 NY3d 1136 [2022]). The various different video recordings introduced at trial placed defendant near the scene and, coupled with the testimony of the victim's cousin identifying defendant as the shooter, was sufficient to meet the People's burden to establish defendant's identity as well as the fact that he possessed a loaded firearm during the encounter ( see People v Calafell , 211 AD3d 1114 , 1117 [3d Dept 2022], lv denied 39 NY3d 1077 [2023]; People v Williams , 182 AD3d 776 , 778 [3d Dept 2020], lv denied 35 NY3d 1071 [2020]). As to defendant's contention that the evidence against him was largely circumstantial beyond the unreliable testimony of the victim's cousin, that fact reasonably [*3] allows for a different verdict, thus satisfying the first step in our weight of the evidence review ( see People v Terry , 196 AD3d 840 , 846 [3d Dept 2021], lv denied 37 NY3d 1030 [2021]; People v Malloy , 166 AD3d 1302 , 1307 [3d Dept 2018], affd 33 NY3d 1078 [2019]). However, defendant does not suggest that the cousin's testimony was incredible as a matter of law, and the various factors implicating his credibility—including, among other things, that his testimony and cooperation with law enforcement was compelled pursuant to a material witness warrant, that the People had offered relocation assistance and that he was related to the victim—were fully explored at trial and placed squarely before the jury for its consideration. Further, the jury had the opportunity to assess the deficiencies in the People's case that defendant now highlights on appeal, including the lack of DNA evidence tying defendant to the crime and the possibility that the weapon used in the shooting may have been used in a separate robbery that did not involve defendant. Accordingly, giving deference to the jury's credibility determinations and \"weigh[ing] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn\" from the various forms of evidence admitted at trial, we conclude that the jury's verdict reflecting that defendant was the shooter and in possession of a loaded firearm is not contrary to the weight of the evidence ( People v Gertz , 204 AD3d 1166 , 1167 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 38 NY3d 1070 [2022]; see People v Nellis , 217 AD3d 1056 , 1059 [3d Dept 2023]; People v Smith , 174 AD3d 1039 , 1043 [3d Dept 2019], lv denied 35 NY3d 1097 [2020]). Defendant also contends that the People improperly presented evidence of defendant's pretrial silence during a recorded interview with law enforcement. Defendant acknowledges, however, that his contention is unpreserved ( see People v Clarke , 110 AD3d 1341 , 1345 [3d Dept 2013], lv denied 22 NY3d 1197 [2014]), and asks, among other things, that we deem his counsel ineffective based upon the failure to lodge this specific objection to the admission of the recording. As to the underlying merits of that contention, \"[i]t is a well-established principle of state evidentiary law that evidence of a defendant's pretrial silence is generally inadmissible\" ( People v Williams , 25 NY3d 185 , 190 [2015]) due in large part to the \"substantial risk that jurors might construe such silence as an admission and draw an unwarranted inference of guilt\" ( People v Chapman , 182 AD3d 862 , 865 [3d Dept 2020]). After defendant was read and voluntarily waived his Miranda rights, detectives questioned him for approximately three hours. During the time periods identified by defendant in his brief, [FN2] the two detectives conducting the interview generally engaged in several well-established interviewing tactics, including various attempts to build rapport [*4] with defendant by expressing understanding for his circumstances and sympathy for his potential motives for committing the shooting. That theme is consistent throughout the entire interview, during which defendant provided an inculpatory admission that he was the individual inside the convenience store and was generally responsive to the detectives inquiries, but otherwise consistently denied any knowledge of or involvement with the shooting ( see People v Brown , 140 AD3d 1740 , 1741 [4th Dept 2016], lv denied 28 NY3d 1026 [2016]; compare People v Chapman , 182 AD3d at 866). To this end, it is apparent that the moments depicting defendant's silence that appear in the recording are generally brief and, contextually, are precipitated by the interviewing officers asking questions, providing various narratives of the events from that evening, showing defendant images or video footage or encouraging him to tell the truth. More significantly, the record establishes that the People did not emphasize defendant's silence during their case-in-chief, and the People's brief reference in summation to defendant's demeanor during the interview does not indicate that the People were attempting to highlight or infer that defendant had refused to answer any questions from the detectives ( compare People v Williams , 25 NY3d at 192; People v Conyers , 52 NY2d 454, 458 [1981]; People v Chapman , 182 AD3d at 866). Accordingly, through that lens, we do not find that counsel's failure to object to the introduction of any portion of defendant's recorded interview on the grounds of selective silence rendered his representation ineffective ( see People v Johnson , 225 AD3d 927 , 935-936 [3d Dept 2024], lv denied 42 NY3d 927 [2024]; People v Rivera , 212 AD3d 942 , 949 [3d Dept 2023], lv denied 39 NY3d 1113 [2023]; see also People v Jenkins , 198 AD3d 488 , 489 [1st Dept 2021], lv denied 37 NY3d 1146 [2021]). [FN3] Finally, we are unpersuaded that defendant's sentence is unduly harsh or excessive. Considering defendant's criminal history, his failure to demonstrate any remorse for his criminal behavior and the violent nature of the crime, we decline his invitation to modify his sentence ( see People v Burton , 215 AD3d 1054 , 1064 [3d Dept 2023], lv denied 40 NY3d 927 [2023]; People v McGill , 207 AD3d 996 , 997 [3d Dept 2022], lv denied 39 NY3d 987 [2022]). Aarons, J.P., Pritzker, Ceresia and Mackey, JJ., concur. Ordered that the judgments are affirmed. Footnotes Footnote 1: Although defendant's notice of appeal encompasses the judgments of conviction regarding both the jury verdict and the guilty plea, he has abandoned any challenge to the judgment of conviction stemming from the guilty plea by failing to raise any contentions related thereto in his brief ( see People v Shuler , 231 AD3d 1285 , 1286 [3d Dept 2024]). Footnote 2: Although the People represent that only one segment of the interview identified by defendant was shown to the jury, that is not entirely clear from the record. Certain portions of the redacted recording, which was admitted in its entirety, were published at two different points during trial. The first instance in which the recording was published is accompanied by a clear reference to the time frame of the recording being played. However, the second time that the recording was published is less clear as to how much of the recording was played. Specifically, although there is a clear indication as to when the video was started and stopped, the witness examination that ensues between those points suggests that the recording was paused at various intervals and, to that end, is unclear as to whether any portions of the recording were skipped. In any event, reviewing each of the claimed time frames identified by defendant that fall within those outer limits, we find no merit to his contention. Footnote 3: Defendant does not contend that any other aspect of his representation was deficient and, based upon our review, we are satisfied that counsel's efforts, as a whole, \"were more than sufficient to establish that defendant received meaningful representation\" ( People v Mercer , 221 AD3d 1259 , 1260 n [3d Dept 2023], lv denied 41 NY3d 1003 [2024]). "
},
{
"from": "gpt",
"value": "Trial attorney's failure to object at trial did not constitute ineffective\nassistance of counsel. Generally, the prosecution may not introduce\nevidence of defendant's silence when questioned. Here during an almost\nthree-hour police recorded interview, there were a few minutes of silence\nfrom defendant when the police were questioning him. The prosecution\ndid not emphasize that silence in their case in chief and the prosecutor's\nremark during summation about the defendant's demeanor did not\nhighlight defendant's periods of silence or indicate that defendant refused\nto answer the officer's questions."
}
]
|
2024.06386 | [
{
"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 Wendover 2024 NY Slip Op 06386 [233 AD3d 1261] December 19, 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 19, 2024) The People of the State of New York, Respondent, v William Wendover III, Appellant. William V. O'Leary, Albany, for appellant. Christopher Liberati-Conant, District Attorney, Hudson (Kathleen Anderson of counsel), for respondent. Egan Jr., J.P. Appeal from a judgment of the County Court of Columbia County (Richard M. Koweek, J.), rendered October 18, 2016, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child (two counts), promoting a sexual performance by a child, criminal solicitation in the third degree, sexual abuse in the first degree (two counts) and criminal sexual act in the first degree (two counts). The underlying facts are more fully set forth in our prior decisions addressing the appeals of defendant's three codefendants ( see People v Van Alphen , 195 AD3d 1307 [3d Dept 2021], lv denied 37 NY3d 1061 [2021]; People v Shackelton , 177 AD3d 1163 [3d Dept 2019], lv denied 34 NY3d 1162 [2020]; People v Van Alphen , 167 AD3d 1076 [3d Dept 2018], lv denied 32 NY3d 1210 [2019]). Briefly, defendant and his codefendants were charged with offenses relating to their sexual abuse and exploitation of children over the course of several years. The charges against defendant, as set out in a superseding indictment filed in 2015, involved offenses relating to his conduct toward victim A (born in 2002), victim B (born in 2004) and victim C (born in 2006) at points between 2009 and 2011. The matter proceeded to a joint trial where defendant was convicted of charges that, for the most part, related to victims A and B. The jury specifically convicted defendant of two counts of predatory sexual assault against a child, two counts of course of sexual conduct against a child in the first degree, two counts of sexual abuse in the first degree and two counts of criminal sexual act in the first degree, one count for each of those offenses relating to victim A and one relating to victim B. Defendant was further found guilty of promoting a sexual performance by a child and criminal solicitation in the third degree, those offenses relating to his conduct toward all three victims. At sentencing, County Court dismissed the course of sexual conduct convictions as lesser included offenses of the predatory sexual assault against a child convictions. County Court then sentenced defendant, as a second felony offender, to prison terms of 25 years to life on the predatory sexual assault of a child convictions, 3 1/2 to 7 years on the promoting a sexual performance of a child conviction, 2 to 4 years on the criminal solicitation conviction, and seven years, to be followed by 15 years of postrelease supervision, on the sexual abuse in the first degree convictions. County Court directed that those sentences run consecutively to one another, and imposed concurrent terms of 25 years in prison, to be followed by 25 years of postrelease supervision, upon each of the criminal sexual act in the first degree convictions. Defendant appeals. We affirm. To begin, the verdict against defendant is entirely supported by the evidence. The proof presented at the joint trial has been discussed at length in our prior decisions but, without belaboring the point, victim A testified at trial to multiple [*2] incidents when he was between the ages of four and seven in which defendant and the codefendants violated him with various objects. Victim A stated that defendant, in particular, had \"often\" touched his penis, engaged in anal sex with him and victim B, and forced victim A and victim B to have sex with each other beginning when victim A was five years old and ending when he was seven years old. Victim A additionally testified that defendant made video recordings and took photographs of him and the other victims being abused. Victim B also testified and, although he was younger than victim A and provided fewer details as to what had occurred, gave an account that was largely consistent with that described by victim A. Notwithstanding defendant's claim to the contrary—and to the extent that the issue is preserved by his trial motion to dismiss—we have no difficulty concluding that the foregoing testimony, when viewed in the light most favorable to the People, is legally sufficient to support the verdict in all respects ( see People v Cuadrado , 227 AD3d 1174 , 1176 [3d Dept 2024], lv denied 42 NY3d 969 [2024]; People v May , 188 AD3d 1309 , 1310 [3d Dept 2020], lv denied 36 NY3d 974 [2020]; People v Van Alphen , 167 AD3d at 1078). Defendant goes on to suggest that the verdict is against the weight of the evidence, pointing, among other things, to the lack of physical evidence to establish that any abuse had occurred and various reasons to doubt the accuracy and reliability of the victims' testimony. Those issues were placed squarely before the jury, however, and the jury presumably took them into account when it acquitted defendant of charges relating to his use of a dildo on victims A and B and of all the charges solely relating to victim C. The jury nevertheless credited the testimony that defendant had committed almost all of the charged abuse and exploitation against victims A and B, and recorded the abuse of all three victims, during the relevant period. We defer to that assessment of credibility and, viewing the proof in a neutral light, are similarly satisfied that the verdict is not against the weight of the evidence ( see People v Cuadrado , 227 AD3d at 1177; People v Shackelton , 177 AD3d at 1163; People v Van Alphen , 167 AD3d at 1078). Defendant next contends that County Court abused its discretion in denying his request to sever his trial from that of his codefendants, but we do not agree. There is a strong public policy favoring joint trials of individuals whose offenses arise out of a common scheme or plan, but severance is required where a defendant's \"defense is in irreconcilable conflict with\" those of his or her codefendants and \"there is a significant danger, as [all the] defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer [the] defendant's guilt\" ( People v Mahboubian , 74 NY2d 174, 184 [1989]; see People v Cardwell , 78 NY2d 996, 997-998 [1991]; People v Murray , 155 AD3d 1106 , 1109 [3d Dept 2017 [*3] ], lv denied 31 NY3d 1015 [2018]). Defendant did not establish that such a conflict existed and, indeed, he and his codefendants essentially all advanced the defense that the victims were not credible and that the People had not proven that the alleged abuse had occurred ( see People v Smith , 89 AD3d 1126 , 1131 [3d Dept 2011], lv denied 18 NY3d 962 [2012]; People v Johnson , 296 AD2d 422, 423 [2d Dept 2002], lv denied 99 NY2d 537 [2002]). Moreover, while defendant complains that the jury may have been tempted to infer his guilt from evidence of the misbehavior of his codefendants and testimony as to what the victims told third parties about it, that evidence did not implicate him and its admission did \"not afford [him] with an adequate ground for a severance\" ( People v Peisahkman , 29 AD3d 352 , 353 [1st Dept 2006]; accord People v Moore , 223 AD3d 1085 , 1094 [3d Dept 2024], lv denied 41 NY3d 1003 [2024]). [FN*] County Court therefore properly determined that severance was not warranted. Defendant's remaining arguments do not demand extended discussion. We considered and rejected the argument advanced by defendant regarding the validity of the grand jury that handed up the superseding indictment against him when it was raised by one of his codefendants on appeal, and we decline defendant's invitation to revisit the issue ( see People v Van Alphen , 195 AD3d at 1309-1310). Similarly, the bulk of his arguments regarding the conduct of the trial were raised, considered and rejected upon a codefendant's appeal, and defendant points to nothing that would compel a different result here ( see id. at 1308-1313). Finally, defendant suggests that the jury charge deviates from the factual allegations in the superceding indictment as limited by the People's bill of particulars, but he leaves it far from clear as to exactly what portion of the charge he is challenging. In any event, while defendant did raise various objections to the jury charge, our review of the record does not reflect that any of the complained-of portions of the charge \"constructively amend[ed] [the] indictment in such a way as to allow a variation in the theory of the prosecution\" so as to constitute error ( People v Spratley , 144 AD2d 769, 770 [3d Dept 1988], lv denied 73 NY2d 896 [1989]; see People v Lee , 183 AD3d 1183 , 1190 [3d Dept 2020], lv denied 35 NY3d 1114 [2020]). To the extent that defendant's arguments are not addressed above, they have been examined and are lacking in merit. Pritzker, Lynch, Fisher and Powers, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: To the extent that defendant's related contention regarding the admissibility of the victims' out-of-court statements is preserved for our review, we reject it. The bulk of the out-of-court statements defendant points to were properly admitted for the nonhearsay purpose of explaining how the investigation that led to the charges against defendant and his codefendants unfolded ( People v Shackelton , 177 AD3d at 1164; see People v Cullen , 24 NY3d 1014 , 1016 [2014]), while other statements victim C made to an examining gynecologist were properly admitted under the hearsay exception for statements relevant to medical diagnosis and treatment ( see People v Spicola , 16 NY3d 441 , 451 [2011], cert denied 565 US 942 [2011]). "
},
{
"from": "gpt",
"value": "There is a strong public policy in favor of joint trials of defendants whose\ncriminal conduct arises out of a common scheme or plan. Since defendant\ndid not establish that the codefendants' misconduct which did not implicate\nhim, would adversely influence the jury against him, he did not provide a\nbasis for a separate trial."
}
]
|
2024.05176 | [
{
"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 Dixon 2024 NY Slip Op 05176 [42 NY3d 609] October 22, 2024 Troutman, J. Court of Appeals 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 Kerbet Dixon, Appellant. Argued September 10, 2024; decided October 22, 2024 People v Dixon , 211 AD3d 1030 , affirmed. {**42 NY3d at 612} OPINION OF THE COURT Troutman, J. The primary issue before us is whether this pro se defendant was denied his constitutional right to present a defense by the People's monitoring of the telephone calls that he made to his trial witnesses from jail. Under the unique circumstances of this case, we hold that defendant's constitutional right to present a defense was not violated. Because that contention and defendant's remaining contentions do not require reversal or modification, we affirm. I. In 2011, \"A.M.\" and \"J.H.,\" two children under 11 years old, accused defendant of repeatedly sexually assaulting them between 2007 and 2009, and a third complainant, \"D.M.,\" accused defendant of raping her during that same period when she was under the age of 17. After one of the complainants disclosed that defendant had video-recorded the assaults and shown her child pornography during the course of the assaults, {**42 NY3d at 613} the police obtained a search warrant and seized defendant's home computers. Forensic examination of the computers revealed hundreds of images of child pornography and an encrypted, 10-gigabyte \"TrueCrypt\" container that the police were unable to access, even with the assistance of the Secret Service, FBI, and Department of Homeland Security. [FN1] The examination further [*2] revealed that Google alerts on one of the computers had been set for specific search terms eerily similar to aspects of the assaults. Proceedings commenced in March 2012 by the filing of an indictment charging defendant with, inter alia, one count of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) pertaining to the conduct against A.M., another count of course of sexual conduct against a child in the first degree ( see id .) pertaining to the conduct against J.H., two counts of rape in the third degree ( id. § 130.25) pertaining to the conduct against D.M., and 150 counts each of promoting and possessing a sexual performance by a child ( id. §§ 263.15, 263.16). Defendant posted bail and was released. After defendant unsuccessfully sought to sever the child pornography counts from the sexual assault counts pursuant to CPL 200.20, a second indictment charged him with an additional 334 counts of possessing a sexual performance by a child (Penal Law § 263.16). Upon the People's unopposed application, Supreme Court joined the second indictment for trial with the first. The court assigned counsel, as well as a computer expert and an investigator to assist the defense. Defendant eventually became dissatisfied with his assigned counsel, as he had with two prior attorneys, and, in July 2013, the court granted defendant's request to proceed pro se and continued defense counsel's assignment in the role of a \"legal advisor.\" The trial commenced in late January 2014. The People's first few witnesses included A.M. and J.H, who were ages 11 and 13 at the time of trial. At one point during trial, on a Thursday, the court decided to take an extended lunch recess to give the People's next witness time to arrive from out of state. Defendant asked who that witness would be. The court asked the {**42 NY3d at 614} prosecutor if there were any concerns about witness intimidation. The prosecutor said that there were no such concerns and disclosed that the next witness would be D.M. After the recess, the court stated that D.M.'s arrival had been delayed and adjourned for the day. On Friday morning, the prosecutor brought the court's attention to a blog posted to the Internet Thursday evening from an IP address associated with the residence of defendant's sister, where defendant was living during trial. The blog made sexually disparaging comments about D.M., identified her by name as a complainant in a sex crime case, and included a picture of her in underwear. The prosecutor said that the picture was one that defendant had previously disclosed to the People. Defendant stated that he did not post the blog but knew who did. The prosecutor asked the court to remand defendant to jail, stating that the complainant was \"devastated\" and \"in tears . . . waiting to be called to testify.\" The prosecutor added that defendant's actions \"had the chilling effect\" that defendant intended. The court concluded that defendant either posted the blog himself, or assisted the person who posted it, in violation of Civil Rights Law § 50-b. As a result, the court ordered defendant to be remanded. On Monday morning, defendant protested that it was difficult to prepare his witnesses for trial because he was in jail with no access to his files or witnesses, and he moved for a mistrial. The court stated that defendant had the assistance of his family and his legal advisor. The prosecutor added that defendant had been afforded not only a legal advisor but an investigator and a computer expert to assist him with preparation of his defense, at public expense. The People later called as a witness the detective and computer crimes specialist who conducted the forensic examination of defendant's computers, and he testified to the existence of the encrypted, 10-gigabyte TrueCrypt container that was installed on one of the computers, among other findings. After the testimony of two more witnesses, the People rested. Defendant's first witness was his daughter; the court gave defendant the opportunity to speak to her alone in the courtroom before she testified. It became apparent during the testimony that defendant intended to introduce in evidence a recorded conversation between his daughter and A.M., in which A.M. allegedly recanted her accusations. Although the daughter recorded the conversation two years earlier, the defense {**42 NY3d at 615} never disclosed the recording to the People, with the defendant insisting that he had just become aware of the recording himself. During voir dire, the daughter testified that she simply asked A.M. questions and told her to be honest. The daughter admitted, however, that she \"had to record it a couple of times\" and delete portions of it because A.M. was not answering the questions out loud at first. Though the court was \"sure\" that defendant was aware of the existence of the recording and that defendant's tactic was an \"ambush,\" the court permitted the recording to be played for the jury. On cross-examination, the People asked the daughter about a phone conversation she had with the incarcerated defendant the week before. The daughter admitted, based on the contents of that conversation, that defendant was not only familiar with TrueCrypt but also that he gave her the password for it over the phone. The daughter further testified that defendant told her to come visit him in jail so that he could \"grill\" her before she [*3] testified. When the People sought to refresh the daughter's recollection about further details of the call, defendant agreed to allow the call to be played outside of the jury's presence and stipulated to the contents of the call. The People were permitted to call A.M. out of order to testify in rebuttal about the circumstances of her alleged recantation. She testified that, two years earlier (when she was nine years old) defendant's daughter drove her to Toys \"R\" Us to pick out toys for her Christmas list. While parked outside the store, the daughter questioned A.M. about her accusations against defendant. When A.M. gave the \"[w]rong\" answers, the daughter instructed A.M. to say \"no\" when the daughter shook her head and \"yes\" when the daughter nodded. A.M. testified that her statements on the recording were false and that her trial testimony was true. The defense case proceeded, with defendant at one point protesting that it was difficult to prepare his witness with the prosecutor listening to his calls. The court stated that when defendant wanted to speak to his witnesses, the court made the prosecutors leave the courtroom. Defendant protested that he still did not have enough time to prepare. The court responded that the case had \"gone on for years\": \"You've had years to prepare the case.\" Defendant asked to adjourn for the weekend so he could have more time to prepare his witnesses. The court denied the request but noted that there was only one more day of scheduled testimony before the weekend and stated that it {**42 NY3d at 616} would revisit the matter the next morning. The next day, it was agreed that defendant would testify in his own defense. Defendant called one character witness to provide brief testimony and spent the rest of the day testifying in narrative fashion. On the morning of the last day of testimony, defendant objected to the People listening to his calls, arguing that it gave the People an \"unfair advantage.\" The court rejected defendant's argument. The jury found defendant guilty of only one felony sexual assault count—course of sexual conduct against a child pertaining to conduct against J.H.—but also found him guilty of all 634 child pornography counts. The jury deadlocked on the count of course of sexual conduct against a child pertaining to A.M. and the counts of rape pertaining to D.M. At sentencing, defendant entered an Alford plea to the deadlocked counts in exchange for concurrent time and the court's promise that it would vacate the plea if the judgment were reversed on appeal. The Appellate Division affirmed the judgments (211 AD3d 1030 [2d Dept 2022]), and a Judge of this Court granted leave to appeal (40 NY3d 933 [2023]). II. \"Criminal defendants must be afforded 'a meaningful opportunity to present a complete defense' \" ( People v Deverow , 38 NY3d 157 , 164 [2022], quoting Crane v Kentucky , 476 US 683, 690 [1986]). That right, which encompasses the right to offer the testimony of witnesses, is \"a fundamental element of due process of law\" ( Washington v Texas , 388 US 14, 19 [1967]; see Deverow , 38 NY3d at 164; US Const Sixth, Fourteenth Amends). Criminal defendants also have a constitutional right to self-representation ( see McKaskle v Wiggins , 465 US 168, 174 [1984]). The right to self-representation exists not only \"to affirm the dignity and autonomy of the accused,\" but also \"to allow the presentation of what may, at least occasionally, be the accused's best possible defense\" ( id. at 176-177; see People v Rosen , 81 NY2d 237, 245 [1993]). To that end, pro se defendants \"must be allowed to control the organization and content of [their] own defense\" and \"must be accorded 'compulsory process for obtaining witnesses in [their] favor' \" ( McKaskle , 465 US at 174, quoting US Const Sixth Amend; see Rosen , 81 NY2d at 244). Thus, an incarcerated pro se defendant has a right to prepare and present a defense no less than any other defendant. {**42 NY3d at 617} In contending that the right to present a defense was violated in this case, defendant posits that the People's \"unfettered access\" to recordings of jail phone calls has the potential to prejudice a pro se defendant and impair his ability to prepare and present a defense, undermining the fairness of the process ( People v Johnson , 27 NY3d 199 , 211 [2016, Pigott, J., concurring]). The opportunity for a lawyer to communicate confidentially with potential witnesses is essential to preparation of a defense, and the same is true for an incarcerated defendant exercising the right to self-representation. Pro se defendants who use jail telephones to prepare their witnesses and discuss trial strategies may not fully appreciate that their conversations may be divulged to the prosecution, which risks placing them at an unfair disadvantage. Even where that possibility is understood, the limited alternative options place many incarcerated pro se defendants in a difficult position: prepare over a recorded phone line or do not prepare at all ( see id. at 211 [Pigott, J., concurring]). [1] Under the particular facts of this case, however, we conclude that defendant's right to present a defense was not impaired by the monitoring of his jail phone calls. Defendant was out on bail for nearly the entire two years between indictment and his mid-trial remand, including more than six months while representing himself, giving him ample time to prepare his witnesses. Even after remand, there is no dispute that defendant had means other than the recorded phone lines to prepare his witnesses. Indeed, the record establishes that defendant's daughter visited him in [*4] jail at his request before he called her to testify so that they could continue their trial preparations in person. The court was proactive in protecting defendant's rights, [FN2] permitting him time in the courtroom to speak to each of his witnesses in private before their testimony. In addition, when defendant asked to adjourn for the weekend {**42 NY3d at 618} to prepare his witnesses, the court stated that it would take the matter up in the morning, at which time it was agreed that defendant would testify for most of the remainder of the week. The court also noted that defendant had been assigned a legal advisor and an investigator, both of whom had the expertise and wherewithal to assist in the preparation of the defense. Although the People's monitoring of an incarcerated pro se defendant's jail phone calls may have a chilling effect on the defendant's trial preparation that threatens the right to present a defense—particularly if the People are able to make use of the information in the calls in the pending trial—the facts here are otherwise. Defendant became aware that the People were listening to his phone conversations only after he had presented the direct testimony of his daughter and an expert. Aside from himself, the only remaining defense witnesses provided character testimony and little else that could be considered relevant to the case. Thus, any chilling effect here was negligible. Under the circumstances of this case, we conclude that there was no violation of defendant's right to present a defense. III. Defendant's remaining contentions are meritless, waived, or unpreserved. Contrary to defendant's contention, the court properly denied his motion to sever the counts in the first indictment charging child pornography offenses from the counts charging sexual assault offenses. Because the offenses were properly joined pursuant to CPL 200.20 (2) (b), \"the court lacked statutory authority to sever\" them ( People v Bongarzone , 69 NY2d 892, 895 [1987]; see CPL 200.20 [3]). [2] We reject defendant's further contention that the court should have denied his request to proceed pro se as equivocal. A request to go pro se is equivocal when it \"does not reflect an affirmative desire for self-representation\" and instead shows that \"self-representation was reserved as a final, conditional resort\" ( Matter of Kathleen K. [Steven K.] , 17 NY3d 380 , 387 [2011]). To be sure, \"conditioning a request for new attorneys with a request for self-representation does not necessarily make the latter request equivocal\" ( People v LaValle , 3 NY3d 88 , 107 [2004]), but it can become equivocal where a \"defendant raised the argument for self-representation as a way of obtaining the dismissal of his . . . assigned counsel\" ( People v Gillian , 8 NY3d 85 , 88 [2006]). Here, although defendant {**42 NY3d at 619} initially made his request to proceed pro se as an alternative to his request for substitute counsel, defendant later told the court that he had spoken to his family and decided that self-representation was \"the best way to go.\" Before conducting the requisite searching inquiry, the court invited defendant to make another argument for substitute counsel, but defendant declined to do so, explaining that he was \"satisfied to go pro se.\" Moreover, even after granting defendant's request to proceed pro se, the court left the door open for defendant to make an argument for the appointment of a new attorney, and thereafter defendant \"never said a word about wanting\" one ( LaValle , 3 NY3d at 107). Under these circumstances, where defendant explicitly declined the opportunity to argue for a new attorney, defendant's request was unequivocal. Defendant next contends that the court failed to conduct a \"searching inquiry\" as required to apprise him of the dangers and pitfalls of self-representation inasmuch as the court failed to ensure that he was aware of the nature of the charges and range of possible sentences that may result from conviction. We reject that contention as well ( see People v Blue , — NY3d — [2024]). The record and defendant's own statements indicate that he worked as a court officer for 21 years, had been involved in prior sexual abuse cases, and was aware that he risked [*5] serving the rest of his natural life in prison if convicted. Indeed, defendant mentioned twice during the searching inquiry that his \"life\" was at stake. Defendant waived any challenge to the use of a recorded jail telephone call during cross-examination of his daughter because he agreed to allow the recording to be played and stipulated to its contents ( see People v Santos-Sosa , 233 AD2d 833, 833 [4th Dept 1996], lv denied 89 NY2d 988 [1997]). Defendant's remaining contentions, including his challenge to the People's introduction of an inflammatory bestiality video, are unpreserved. Accordingly, the order of the Appellate Division should be affirmed. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Halligan concur. Order affirmed. Footnotes Footnote 1: According to the trial testimony of the detective and computer crimes specialist who conducted the forensic examination, TrueCrypt is software that allows users to encrypt files and create containers, like folders, where encrypted files can be stored and accessed only by a person who knows the password. Footnote 2: Though unrelated to the monitoring of the calls, we note that another of the court's rulings demonstrates that the court was mindful of defendant's right to present a defense. When defendant sought to introduce a previously undisclosed, years-old, edited recording of a complainant's ostensible recantation, the court permitted the recording to be played for the jury, a ruling consistent with the goal of protecting defendant's right to present a defense ( see People v Cerda , 40 NY3d 369 , 378 [2023] [concluding that exclusion of exculpatory forensic evidence violated right to present defense]; People v Spencer , 20 NY3d 954 , 956 [2012] [concluding that court should have permitted defendant to present evidence in his defense of officer's motive to frame him for the crime]). "
},
{
"from": "gpt",
"value": "Trial court did not err in denying motion to sever the counts charging child\npornography offenses from the counts charging sexual assault offenses.\n\"Because the offenses were properly joined pursuant to CPL 200.20 (2)\n(b),\n'the court lacked statutory authority to sever' them (People v\nBongarzone, 69 NY2d 892, 895 [1987]; see CPL 200.20 [3]).\n\""
}
]
|
2024.04013 | [
{
"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 Everson 2024 NY Slip Op 04013 [229 AD3d 1349] July 26, 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 James Everson, Appellant. Keem Appeals, PLLC, Syracuse (Bradley E. Keem of counsel), for defendant-appellant. William J. Fitzpatrick, District Attorney, Syracuse (David D. Bassett of counsel), for respondent. Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered July 15, 2021. The judgment convicted defendant upon a jury verdict of murder in the second degree and criminal possession of a weapon in the second degree (four counts). It is hereby ordered that the judgment so appealed from is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and four counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]) arising out of a drive-by shooting of the victim. We affirm. Defendant's contention that County Court failed to conduct a sufficient inquiry into the People's readiness as directed by CPL 30.30 (5) is not preserved for our review inasmuch as defendant did not object to the sufficiency of the inquiry ( see People v Hardy , 47 NY2d 500, 505 [1979]; see generally People v Wills , 224 AD3d 1329 , 1330 [4th Dept 2024], lv denied 41 NY3d 1005 [2024]). We reject defendant's contention that the court erred in admitting evidence of prior violence between feuding groups of individuals who reside in the vicinity of the park where the shooting occurred, as well as evidence that defendant and his codefendant were affiliated with one of those groups. It is well settled that \"[e]vidence regarding gang activity can be admitted to provide necessary background, or when it is 'inextricably interwoven' with the charged crime[ ], or to explain the relationships of the individuals involved\" ( People v Kims , 24 NY3d 422 , 438 [2014]; see People v Tatum , 204 AD3d 1400 , 1402 [4th Dept 2022], lv denied 38 NY3d 1074 [2022]). Here, the testimony regarding defendant's affiliation with certain individuals provided necessary background information to explain the relationship of defendant to his codefendant and defendant's motive for shooting from a moving car into a crowd of people in the park ( see People v Savery , 209 AD3d 1268 , 1269 [4th Dept 2022], lv denied 39 NY3d 1075 [2023]), and we further conclude that the prejudicial effect of that testimony did not outweigh its probative value ( see People v Haygood , 201 AD3d 1363 , 1364 [4th Dept 2022], lv denied 38 NY3d 951 [2022]). We also reject defendant's contention that the court erred in refusing to sever his trial from that of his codefendant. \"The decision to grant or deny a separate trial is vested primarily in the sound judgment of the [t]rial [j]udge, and defendant['s] burden to demonstrate abuse of that discretion is a substantial one\" ( People v Mahboubian , 74 NY2d 174, 183 [1989]). Moreover, \"[j]oint trials are preferred where, as here, the same evidence will be used and the defendant and codefendant[ ] are charged with acting in concert . . . , and severance is not required solely because of hostility between the [defendants], differences in their trial strategies or inconsistencies in their defenses\" ( People v Rideout , 177 AD3d 1377 , 1378-1379 [4th Dept [*2] 2019], lv denied 35 NY3d 973 [2020] [internal quotation marks omitted]). Contrary to defendant's contention, the codefendant's counsel did not act as a second prosecutor because, although he emphasized the People's evidence against defendant on summation, \"[he] did not elicit any new evidence against the defendant that his jury would not otherwise have heard had he been granted a separate trial\" ( People v Bostic , 217 AD3d 678 , 680 [2d Dept 2023], lv denied 41 NY3d 964 [2024]; see People v Osborne , 88 AD3d 1284 , 1285 [4th Dept 2011], lv denied 19 NY3d 999 [2012], denied reconsideration 19 NY3d 1104 [2012]; cf. People v Cardwell , 78 NY2d 996, 998 [1991]). We also reject defendant's contention that he was denied a fair trial by prosecutorial misconduct, including the prosecutor's references to the musical West Side Story in her opening statement and the quality of the police investigation in her summation. The challenged comments were not so egregious as to deprive defendant of a fair trial ( see People v Melendez , 11 AD3d 983 , 984 [4th Dept 2004], lv denied 4 NY3d 888 [2005]; People v White , 291 AD2d 842, 843 [4th Dept 2002], lv denied 98 NY2d 656 [2002]) and, further, \"the court alleviated any prejudice arising from the prosecutor's comments and summation by instructing the jury that the comments and summations of the prosecutor and defense counsel do not constitute evidence\" ( People v Williams , 28 AD3d 1059 , 1061 [4th Dept 2006], affd 8 NY3d 854 [2007]). Contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe. Finally, we have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment. All concur except Hannah, J., who dissents and votes to reverse in the following memorandum. Hannah, J. (dissenting). I respectfully dissent because I believe that severance was compelled in this case and thus that defendant is entitled to a new trial. Severance of criminal trials that could otherwise be joined is rooted in the fundamental concern that a defendant may be unduly prejudiced by a joint trial ( see CPL 200.40 [1]). The determination whether to sever permissively joined trials requires, essentially, a balancing of judicial economy on the one hand and a defendant's right to a fair trial on the other ( see People v Mahboubian , 74 NY2d 174, 183 [1989]). Although typically left to the discretion of the trial court, the Court of Appeals has \"set forth a two-part test for determining whether severance is required,\" holding that \" 'severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt' \" ( People v Cardwell , 78 NY2d 996, 997-998 [1991], quoting Mahboubian , 74 NY2d at 184). The first part of that test is satisfied here. At trial, it was alleged by the prosecution that three individuals were riding in a vehicle, that two of those persons fired gunshots from the vehicle, and that the gunshots killed the victim. The third person in the vehicle (eyewitness) was called as a prosecution witness and accused defendant and his codefendant of being the two shooters. The core of defendant's presentation to the jury was that he was not one of those two shooters because the prosecution had, his counsel argued on summation, failed to establish either that he was present in the vehicle or, even if present, that he was one of the two persons alleged to have fired from it. In stark contrast, the core of the codefendant's presentation was, as explicitly synthesized during closing argument, that defendant was one of the two shooters, along with the eyewitness. One cannot both be and not be one of the shooters, and thus the core of each defense stood, axiomatically, in irreconcilable conflict. In one case defendant was not a shooter and may not have even been present, whereas in the other he was not only present but one of the two persons who shot at the victim. \"This was more than complete disagreement on some factual detail, or even some peripheral aspect of the case . . . The defenses presented here were antagonistic at their crux\" ( Mahboubian , 74 NY2d at 185-186). The second part of the test, however, requires a deeper look into the circumstances of the case. Here, the People most directly established defendant's guilt through the testimony of the eyewitness who, if credited, established defendant's identity as one of the shooters. Understandably then, discrediting the eyewitness became a central focus of defendant's defense at every stage—through pretrial motions, cross-examination, trial motions, and closing argument. At each step, defendant attempted to establish that the eyewitness was not to be believed based [*3] on his history of bad acts; his evasiveness and untruthfulness when speaking to the police; and discrepancies in his various statements to the police, his testimony before the grand jury, and his testimony at trial. Interjected into this otherwise classic battle over witness credibility, however, was the codefendant's defense. Despite defendant's pretrial motions, cross-examination of prosecution witnesses, and preparations for closing argument all aimed at discrediting the eyewitness, at the end of trial, the codefendant's counsel stood before the jury and exclaimed during his own closing argument that the jury knew—or ostensibly should have known—\"two things for sure about the car, shots came from it and there were two guns.\" With an equal lack of equivocation, the codefendant's counsel then stated that \"we know who one of those persons was that had [a] gun,\" thereby identifying defendant as one of the shooters. Not only did those explicit, zero-hour statements by the codefendant's counsel sharply undercut defendant's claim of innocence, but they also more specifically undercut his defense against the eyewitness's damning testimony. Rather than posing a simple choice of whether to credit the eyewitness, defendant now had to overcome the accusations of two persons, i.e., the eyewitness and the codefendant, who were now both telling a consistent story insofar as it identified defendant as a shooter. Unlike what would have occurred absent the codefendant's involvement, discrediting the eyewitness's identification of defendant as a shooter now required that the jury discredit both the eyewitness and the codefendant—a person defendant lacked the ability to cross-examine—and overlook the fact that defendant apparently could not get his own story to match those of either of the other two people in the car. In short, the unambiguous accusations from the codefendant on summation not only provided, in effect, a third-party endorsement of the People's case against defendant, but it also served to undermine a lynchpin of defendant's defense—that the eyewitness was incredible—by presenting a second voice, independent of the People's case, that specifically endorsed the eyewitness's identification of defendant. Under the circumstances of this case, I believe that the irreconcilable conflict between defendant and the codefendant, in light of the role that the eyewitness's credibility played and the way in which that conflict impacted how the jury would view the credibility of his testimony, created a significant danger that this conflict alone permitted the jury to infer that defendant was one of the shooters, thus inferring his guilt ( see Cardwell , 78 NY2d at 997-998). Indeed, because County Court refused to sever defendant's trial from that of the codefendant, the jury was presented with two defendants who were not telling consistent stories, while also being presented with a prosecution witness—the only person other than the two defendants who was inside the car—whose testimony both defendants attempted to claim was incredible. This situation, as perhaps reflected in the verdict, created a \"significant possibility that the jury unjustifiably concluded by virtue of the conflict itself that both defenses were incredible and gave undue weight to the government's evidence,\" discrediting both defendant and the codefendant due to the finger-pointing between them and instead lending greater weight to the eyewitness presented by the People ( Mahboubian , 74 NY2d at 186). Although the majority notes that the codefendant did not elicit new evidence against defendant that the jury would not have otherwise heard in a severed trial, I disagree with that characterization. Initially, the above two-part analysis articulated by the Court of Appeals speaks to the conflict between \"each defense\" ( id. at 184), not the way in which a codefendant has elicited new evidence not otherwise brought forth by the People ( see Cardwell , 78 NY2d at 997-998; Mahboubian , 74 NY2d at 184). Although certainly a reason for which severance may be compelled, I do not view the Mahboubian standard as requiring a codefendant's defense to conflict in any particular way or to present such conflict by any particular means, so long as the conflict creates the sort of \"significant danger\" the analysis contemplates (74 NY2d at 184). In any event, I believe that the closing argument of the codefendant's counsel in fact did reveal new information when viewed in light of the credibility battle between defendant and the eyewitness. Prior to the codefendant's closing argument, testimony reflected that the eyewitness's accusation against defendant was his and his alone. Until closing argument, the jury did not know that the codefendant would adopt that allegation. Although the codefendant's endorsement of the identification of defendant was not a new piece of physical evidence or new testimony, it was certainly a new development that altered the landscape of how the jury would likely consider the credibility dispute before it, and one that would not have arisen in a severed trial. Consequently, I believe that severance was \"compelled\" ( id .). Inasmuch as I conclude [*4] that none of defendant's contentions requires dismissal of the indictment, I would therefore reverse the judgment of conviction and grant defendant a new trial. Present—Whalen, P.J., Curran, Bannister, DelConte and Hannah, JJ."
},
{
"from": "gpt",
"value": "Lower\ncourt did not err in refusing to sever Everson's trial from that of his\ncodefendant.\n\"The decision to grant or deny a separate trial is vested\nprimarily in the sound judgment of the [t]rial [j]udge, and defendant['s]\nburden to demonstrate abuse of that discretion is a substantial one\"\n.\nMoreover,\n\"[j]oint trials are preferred where, as here, the same evidence will be used and the defendant and codefendant[ ] are charged with acting\nin concert . . . , and severance is not required solely because of hostility\nbetween the [defendants], differences in their trial strategies or\ninconsistencies in their defenses\"\n."
}
]
|
2024.03784 | [
{
"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 Tenace 2024 NY Slip Op 03784 [229 AD3d 908] July 11, 2024 Appellate Division, Third 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 Troy M. Tenace, Appellant. Danielle Neroni Reilly, Albany, for appellant. G. Scott Walling, Special Prosecutor, Slingerlands, for respondent. McShan, J. Appeal from a judgment of the County Court of Saratoga County (James A. Murphy III, J.), rendered March 6, 2023, upon a verdict convicting defendant of the crimes of assault in the first degree, assault in the second degree (two counts) and criminal obstruction of breathing or blood circulation. In March 2022, defendant was charged by indictment with assault in the first degree, two counts of assault in the second degree and criminal obstruction of breathing or blood circulation stemming from an altercation in September 2021 involving defendant's former girlfriend and her father in the Town of Ballston, Saratoga County. After an eight-day jury trial, defendant was convicted as charged and subsequently sentenced on the assault in the first degree conviction to a prison term of 15 years, to be followed by five years of postrelease supervision, and to lesser concurrent terms of incarceration for the remaining convictions. Defendant appeals. Turning first to his legal sufficiency and weight of the evidence arguments, defendant contends that the People failed to establish that he used a weapon during the commission of the crime and that he intended to cause serious physical injury to the father. [FN1] Although defendant raised this contention in his motion to dismiss the indictment at the close of the People's proof, \"his failure to renew such motion at the close of his proof renders his challenge to the legal sufficiency of the evidence unpreserved\" ( People v Oates , 222 AD3d 1271 , 1272 [3d Dept 2023]). \"Nevertheless, our assessment of defendant's challenge to the weight of the evidence requires that we confirm whether the People proved each element beyond a reasonable doubt, and we do so while considering the evidence in a neutral light with deference to the jury's resolutions on witness credibility\" ( People v Mercer , 221 AD3d 1259 , 1260 [3d Dept 2023] [citations omitted], lv denied 41 NY3d 1003 [2024]). The trial evidence established that, on a rainy evening in September 2021, law enforcement responded to a 911 call at defendant's home, where they encountered the father sitting in a chair at the end of defendant's driveway with bruising around his eye and a significant laceration to the back of his head. The girlfriend testified that she and defendant had been arguing earlier that evening concerning her discovery that he had fathered a child with another woman. According to the girlfriend, defendant would not allow her to leave and directed her to remain in the bedroom. At some point, the argument continued and, after the girlfriend took defendant's phone from him, he put her in a choke hold and dragged her across the kitchen. When defendant eventually let go of her, the girlfriend called her mother on the phone and asked that she come get her. The girlfriend's mother and grandmother arrived shortly after, accompanied by the father. The testimony established that the father then told defendant that they needed to talk and asked him to come outside [*2] , prompting defendant to jump off the couch in an \"agitated\" state and head out the door. After the two headed outside, defendant went around the side of a detached garage on the property, where he first retrieved a garbage can and threw it at the father. Defendant then went back around the side of the garage and, according to the girlfriend and the father, when he emerged, he approached the father from the side and struck him in the head with a shovel. After he was hit, the father fell to the driveway and, while the father was lying on his back, defendant stood over the father and struck him in the face with his fists. Eventually, the girlfriend pulled defendant off the father and she then called 911. During that call, she informed the dispatcher that defendant had just beaten the father up, that the father was bleeding from his head and that he was unconscious. She did not indicate to the dispatcher that a shovel had been used in the attack. The girlfriend provided details of the attack to responding law enforcement but again made no mention of a shovel at that time, which she attributed to a desire to protect defendant. Nevertheless, at trial, she testified that she recognized the shovel, that she and defendant had stored it behind the garage and that when she went back to their house a few days later, the shovel was gone. Meanwhile, the father informed a responding paramedic who treated him at the scene that defendant had hit him in the back of the head with a shovel. After the altercation, the father was transported to the hospital, where he was treated for his injuries, including the laceration in the back of his head, a depressed skull fracture, bleeding in his brain and an ankle fracture. Law enforcement returned to the home that night and searched for a shovel but ultimately never recovered the instrument. Here, a different verdict would not have been unreasonable had the jury rejected the girlfriend and the father's account, as they were the only individuals to testify to defendant's use of a shovel during the altercation. To this end, defendant's arguments are largely directed at testimony pertaining to the adequacy of the search for the shovel by law enforcement, the lack of testimony from any other eyewitness that placed a shovel on defendant's person immediately after the altercation and the failure of any treating provider to definitively attribute the wound to a strike from a shovel. Nevertheless, viewing the evidence in a neutral light and deferring to the jury's resolutions on witness credibility, the determination that defendant utilized a shovel in the altercation was supported by the weight of the evidence and we discern no reason to disturb it ( see People v Abussalam , 196 AD3d 1000 , 1006 [3d Dept 2021], lv denied 37 NY3d 1144 [2021]; People v Watson , 174 AD3d 1138 , 1140 [3d Dept 2019], lv denied 34 NY3d 955 [2019]; People v Williams , 161 AD3d 1296 , 1297-1298 [3d Dept 2018], lv denied 32 NY3d 942 [2018]). [FN2] Further, defendant's [*3] intent to cause serious harm was readily inferable from his conduct and the severity of the father's injuries ( see People v Fisher , 221 AD3d 1355 , 1358 [3d Dept 2023], lv denied 40 NY3d 1092 [2024]; People v Abussalam , 196 AD3d at 1006; People v Lewis , 46 AD3d 943 , 945 [3d Dept 2007]). Although the testimony reflects some inconsistency in the various accounts of the altercation and the reporting to first responders in the aftermath, we find that the jury verdict pertaining to defendant's assault charges is adequately supported and is not against the weight of the evidence ( see Penal Law §§ 120.05 [1], [2]; 120.10 [1]; 10.00 [13]). However, consistent with our recent holding in People v Heidrich (226 AD3d 1096 [3d Dept 2024]), we find merit to defendant's contention that County Court's empaneling of an anonymous jury in his case was in error. We again note that the practice of empaneling an anonymous jury contains no statutory justification, as CPL 270.15 (1-a) merely permits the withholding of residential or business addresses of prospective jurors upon a showing of good cause ( see People v Heidrich , 226 AD3d at 1098; People v Flores , 153 AD3d 182 , 189 [2d Dept 2017], affd 32 NY3d 1087 [2018]; see also CPL 270.15 [1]). While the Court of Appeals has not explicitly sanctioned the practice, it has suggested that, at the very least, \"doing so is error where no 'factual predicate for the extraordinary procedure' has been shown\" ( People v Heidrich , 226 AD3d at 1099, quoting People v Flores , 32 NY3d 1087, 1088 [2018]). To that end, the People concede, and we agree, that the record contains no factual support for utilizing an anonymous jury in this case. Instead, the People focus their arguments on defendant's failure to preserve the issue by consenting to the practice, alongside the contention that the error was, in any event, harmless. On the latter point, we need only note that we recently rejected the applicability of a harmless error analysis to this manner of error ( see People v Heidrich , 226 AD3d at 1099; see also People v Flores , 153 AD3d at 193-195). As to preservation, although defendant concedes his failure to object during pretrial proceedings, he asks that we take corrective action in the interest of justice ( see CPL 470.15 [6] [a]; see also People v Nellis , 217 AD3d 1056 , 1062 [3d Dept 2023]). [FN3] Considering the totality of circumstances, including the potential effect on the fairness of trial that flows from the decision to utilize an anonymous jury without any justification ( see People v Flores , 153 AD3d at 195), we find such action is appropriate. We therefore exercise our interest of justice jurisdiction and grant defendant a new trial. Defendant's remaining arguments are rendered academic by our determination. [FN4] Garry, P.J., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and matter remitted to the County Court of Saratoga County for a new trial. Footnotes Footnote 1: Defendant's failure to address his conviction for criminal obstruction of breathing or blood circulation on appeal renders any challenge to the evidence supporting that conviction abandoned ( see People v Miranda , 163 AD3d 1168 , 1169 n [3d Dept 2018], lv denied 32 NY3d 1066 [2018]). Footnote 2: To the extent defendant suggests that the testimony of the girlfriend and the father should be completely discounted based on their lack of credibility, that argument is first raised in his reply brief and we therefore may not address it ( see People v Ackerman , 173 AD3d 1346 , 1348-1349 [3d Dept 2019], lv denied 34 NY3d 949 [2019]). In any event, were we to do so, we disagree with the premise that both witnesses were incredible as a matter of law ( see People v Osman , 228 AD3d 1007, 1011-1012 [3d Dept 2024]). Footnote 3: Defendant's contention that the empanelment of an anonymous jury implicates the mode of proceedings is raised improperly for the first time in his reply brief and, therefore, we do not address whether County Court's error falls within this narrow exception to the preservation requirement ( see People v Kreutter , 121 AD3d 1534 , 1535 [4th Dept 2014], lv denied 25 NY3d 990 [2015]; see generally People v King , 27 NY3d 147 , 153 [2016]). Footnote 4: As to County Court's decision to eschew the use of the mechanical means of selecting jurors in favor of the court simply calling upon those seated in the courtroom, although we need not opine on the legality of that procedure in light of our decision to remit for a new trial based upon the improper empaneling of an anonymous jury, we nevertheless caution that the practice be avoided ( see People v Williams , 2 NY3d 725 , 726 [2004]) in order to forestall the impression that the court is playing too great of a role in the actual selection of the jury and allowing its own bias to pervade the process ( see People v Batticks , 35 NY3d 561 , 565 [2020]; Hildreth v City of Troy , 101 NY 234, 239 [1886]; see generally People v Blackmond , 212 AD2d 402, 402 [1st Dept 1995], lv denied 85 NY2d 969 [1995]). On that note, the procedure employed by County Court renders meaningful appellate review as to whether any inappropriate factors pervaded the process substantially difficult, if not impossible ( see generally People v Degondea , 269 AD2d 243, 243 [1st Dept 2000], lv denied 95 NY2d 834 [2000]; People v Rodriguez , 177 AD2d 269, 269 [1st Dept 1991]). "
},
{
"from": "gpt",
"value": "County\nCourt erred in empaneling an anonymous jury."
}
]
|
2024.04746 | [
{
"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 Williams 2024 NY Slip Op 04746 [231 AD3d 412] October 1, 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 Kaseem Williams, Appellant. Caprice R. Jenerson, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Jonathan Sclar of counsel), for respondent. Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J., at CPL 730.30 hearing; Michael A. Gross, J., at trial and sentencing), rendered October 29, 2018, convicting defendant, after a jury trial, of criminal contempt in the first degree, criminal obstruction of breathing or blood circulation, and endangering the welfare of a child, and sentencing him, as a second felony offender, to an aggregate prison term of 2 to 4 years, unanimously affirmed. The court properly found defendant fit to stand trial (CPL 730.10 [1]; People v Phillips , 16 NY3d 510 , 516-517 [2011]). The court's decision was based on the reports and testimony of two psychiatric examiners who spoke with defendant and examined his medical records ( see CPL 730.20 [1]). That the examiners interviewed defendant for only about 10 minutes was due to defendant's own refusal to be interviewed ( see People v Torres , 194 AD2d 488 [1st Dept 1993], lv denied 82 NY2d 727 [1993]). Defendant's \"obstreperousness with the court, contentiousness with counsel, and 'strange notions' about his case\" did not establish that he was \"unable to understand the proceedings and assist in his defense\" ( People v Cagan , 179 AD3d 504 , 505 [1st Dept 2020], lv denied 35 NY3d 968 [2020]). The court properly denied defendant's request for a bench trial. Defendant stated that he did not understand the waiver of a jury trial, indicating that he was \"not fully aware of the consequences of the choice he [was] making\" (CPL 320.10 [2]). The court noted defendant's lack of understanding on the record ( cf. People v Swan , 130 AD2d 6, 8 [4th Dept 1987], lv denied 70 NY2d 804 [1987]). Moreover, when given a chance to discuss the waiver with his attorney, defendant refused to do so. The court \"properly found that defendant forfeited his right to be present at trial ( see CPL 260.20) through his frequent outbursts and interruptions of the proceedings, after the court repeatedly warned him that he would be removed from the courtroom if he continued such behavior\" ( People v McCray , 165 AD3d 595 , 596 [1st Dept 2018], lv denied 32 NY3d 1175 [2019]). Concur—Moulton, J.P., Mendez, Higgitt, O'Neill Levy, JJ."
},
{
"from": "gpt",
"value": "Trial court properly held defendant forfeited right to be present at trial by\nvirtue of \"his frequent outbursts and interruptions of the proceedings, after\nthe court repeatedly warned him that he would be removed from the\ncourtroom if he continued such behavior.\n\""
}
]
|
2024.03830 | [
{
"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 Johnson 2024 NY Slip Op 03830 [229 AD3d 639] July 17, 2024 Appellate Division, Second 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 Theodore Johnson, Appellant. Patricia Pazner, New York, NY (Marissa Reap and Chelsey Amelkin of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Terrence P. Heller of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dena E. Douglas, J.), rendered July 1, 2019, convicting him of burglary in the second degree, petit larceny, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in proceeding with the trial in the defendant's absence. \"A defendant's right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions\" ( People v Parker , 57 NY2d 136, 139 [1982]; see People v George , 219 AD3d 502 , 502 [2023]). \"However, a defendant may 'forfeit that right by deliberately absenting himself [or herself] from the proceedings' \" ( People v George , 219 AD3d at 502 [internal quotation marks omitted], quoting People v Pierotti , 208 AD3d 1254 , 1254 [2022]; see People v Sanchez , 65 NY2d 436, 443-444 [1985]). \"[B]efore proceeding in the defendant's absence, the court has an obligation to inquire into the surrounding circumstances to determine if the defendant's absence is deliberate and to recite on the record the reasons for its finding\" ( People v Ramos , 179 AD3d 842 , 843 [2020] [internal quotation marks omitted]; see People v George , 219 AD3d at 502). Here, the record supports the Supreme Court's determination, made after a hearing, that the defendant's absence was deliberate and that his conduct \"unambiguously [indicated] a defiance of the process of law\" sufficient to effect a forfeiture of his right to be present ( People v Sanchez , 65 NY2d at 444; see People v George , 219 AD3d at 502). The record reflects that on November 26, 2018, after the court informed the parties that it would proceed with jury selection, the defendant absconded during a brief recess, that the defendant did not appear throughout the duration of a hearing pursuant to People v Parker (57 NY2d 136 [1982]), which concluded on November 29, 2018, and that efforts to locate the defendant were fruitless. Moreover, the record shows that the court satisfied its obligation to consider \"all appropriate factors\" before proceeding with the trial in absentia ( People v Parker , 57 NY2d at 142; see People v Baynes , 162 AD3d 897 , 898 [2018]). Thus, the court providently exercised its discretion in determining that the defendant forfeited his right to be [*2] present and in proceeding with the trial in his absence. The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is largely unpreserved for appellate review, as, with respect to the majority of the remarks at issue, defense counsel either failed to object, raised only generalized objections, or failed to request additional relief when the Supreme Court sustained his objections ( see CPL 470.05 [2]; People v Flowers , 213 AD3d 692 , 693 [2023]; People v Munnerlyn , 193 AD3d 981 , 982 [2021]). In any event, the remarks at issue either were fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to arguments made by defense counsel in summation, or otherwise do not warrant reversal ( see People v Broderick , 199 AD3d 696 , 697 [2021]; People v Burns , 183 AD3d 835 , 836 [2020]). Contrary to the defendant's contention, the curative instructions provided by the court were sufficient to mitigate any potential prejudice caused by the prosecutor's statement during summation that the defendant and another individual arrested with the defendant \"do burglaries together\" ( see People v Heide , 84 NY2d 943, 944 [1994]; People v Pooler , 226 AD3d 705 [2024]). The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit. Duffy, J.P., Connolly, Wooten and Ventura, JJ., concur."
},
{
"from": "gpt",
"value": "Defendant's conviction affirmed. The trial court properly conducted the\ntrial in defendant's absence because he deliberately forfeited that right.\nAfter a hearing, the trial court found defendant's absence was deliberate\nand that his conduct \"unambiguously [indicated] a defiance of the process\nof law\" sufficient to effect a forfeiture of his right to be present (People v\nSanchez, 65 NY2d 436). The record reflects that on November 26, 2018,\nafter the court informed the parties that it would proceed with jury\nselection, the defendant absconded during a brief recess, that the defendant\ndid not appear throughout the duration of a hearing pursuant to People v\nParker 57 NY2d 136."
}
]
|
2024.06672 | [
{
"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 06672 [233 AD3d 628] December 31, 2024 Appellate Division, First 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 Robert Ortiz, 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 (Faith DiTrolio of counsel), for respondent. Judgment, Supreme Court, New York County (Gregory Carro, J., at suppression hearing; Daniel Conviser, J., at restraint hearing; Ruth Pickholz, J., at trial and sentencing), rendered October 4, 2018, as amended April 15, 2019, and December 21, 2022, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of six years, unanimously affirmed. Order, same court (Pickholz, J.), entered on or about December 27, 2018, which denied defendant's CPL 440.10 motion to vacate his conviction, unanimously affirmed. The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations. In the early morning hours, in an area with a high incidence of drug trafficking, a trained and experienced narcotics officer saw defendant being let inside a building by a man who handed him money. Defendant counted the money, after which he removed a small plastic bag from his back waist area underneath his pants and handed items from the bag to the other man. Although the officer could not see the items handed over, he believed he had just observed a drug transaction ( see People v Martin , 197 AD3d 434 , 434-435 [1st Dept 2021], lv denied 37 NY3d 1097 [2021]). Probable cause does not require certainty, and the totality of circumstances provided probable cause for defendant's arrest ( see People v Jones , 90 NY2d 835, 837 [1997]; People v McRay , 51 NY2d 594, 603-604 [1980]). The officer did not conduct a strip search; rather, he pulled defendant's pants and underwear forward, without pulling his pants down, and reached into defendant's underwear to retrieve a bag that contained drugs. Defendant was not disrobed in any way, and the record does not show that his genitals were exposed to the view of the officer or the public ( see People v Lesane , 184 AD3d 461 , 461 [1st Dept 2020]; see People v Butler , 27 AD3d 365 , 369 [1st Dept 2006], lv dismissed 6 NY3d 893 [2006]). Although the Fifth and Fourteenth Amendments prohibit \"routinely\" placing defendants in physical restraints before the jury, a court may order the use of restraints where their \"use is justified by an essential state interest—such as the interest in courtroom security—specific to the defendant on trial\" ( Deck v Missouri , 544 US 622, 624, 627 [2005] [internal quotation marks omitted]). The trial court may do so only after making individualized findings on the record, focused on the three fundamental considerations of the presumption of innocence, securing a meaningful defense, and maintaining dignified proceedings ( id. at 630-632; see People v Clyde , 18 NY3d 145 , 152 [2011], cert denied 566 US 944 [2012]). Where a court has conducted a sufficient inquiry and has considered the relevant factors, it has \"broad discretion in deciding whether a restraint is necessary for courtroom security\" ( People v Buchanan , 13 NY3d 1 , 4 [2009]). Here [*2] , defendant was not deprived of his right to a fair trial and to be present at his trial when the court, after conducting a hearing, determined that defendant could not be physically present at trial unless he wore a spit mask and leg shackles. The hearing evidence demonstrated the need for both leg shackles and a spit mask, based on defendant's disruptive, belligerent conduct at the suppression hearing, his repeated use of profanities against the court, his threat to physically injure the court officers, and his act of spitting at the court officers, hitting one officer with spit near his eye. \"A court with a reasonable basis for its security concerns based on a defendant's prior violent conduct, disrespect for the solemnity of the proceedings, and inability to maintain their composure . . . need not wait until the court's fears are realized\" before imposing restraints or restrictions on a defendant's presence at trial ( People v Dunton , 42 NY3d 97 , 109 [2024]). Defendant was not deprived of his right to be present at trial, where he was given the choice of appearing by video conference rather than appear with physical restraints, as he chose to do. Concur—Kern, J.P., Kapnick, Kennedy, Higgitt, O'Neill Levy, JJ."
},
{
"from": "gpt",
"value": "Trial court's decision that defendant could not be in courtroom unless he\nwore a spit mask and leg shackles was amply supported by record\ndeveloped at hearing. E.g., his behavior at suppression hearing, spitting at\ncourt officers. Furthermore, defendant not deprived of his right to be\npresent at trial \"where he was given the choice of appearing by video\nconference rather than appear with physical restraints, as he chose to do.\n\""
}
]
|
2024.05132 | [
{
"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 Sharp 2024 NY Slip Op 05132 [42 NY3d 369] October 17, 2024 Rivera, J. Court of Appeals 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 Eric D. Sharp, Appellant. Argued September 12, 2024; decided October 17, 2024 People v Sharp , 214 AD3d 1428 , reversed. {**42 NY3d at 371} OPINION OF THE COURT Rivera, J. We reverse defendant's conviction and grant him a new trial. The trial court held a conference in defendant's absence on the prosecution's motion to cross-examine him on his prior criminal conduct, in violation of his right to be present ( see CPL 260.20; People v Dokes , 79 NY2d 656, 662 [1992]). The court held a subsequent hearing on the motion in defendant's presence. However, the court did not hear arguments on the merits, did not confirm defendant's understanding of the underlying facts or the merits of the application, and merely announced its decision. Thus, the subsequent proceeding did not provide for defendant's meaningful participation in the determination of the merits of the motion and did not cure the earlier violation. * * * Defendant was charged with one count of unlawfully possessing a defaced firearm (Penal Law § 265.02 [3]) and one count of unlawfully possessing a loaded firearm outside of his home or place of business (Penal Law § 265.03 [3]). Before trial, the prosecution filed a Sandoval application, served on defense counsel, to cross-examine defendant about seven prior convictions, one pending case, and the criminal conduct underlying each offense. The application enumerated these offenses {**42 NY3d at 372} and provided a date and description for each. The court held an in-camera, off-the-record conference on the motion with the prosecution and defense counsel, for which defendant was not present. [*2] At a subsequent in-court appearance with defendant present, the following exchange occurred: \"THE COURT: . . . I'm going to make a ruling on the Molineux application. Do you want to be heard, [defense counsel], on the Molineux/Sandoval? \"[DEFENSE COUNSEL]: Your Honor, I would stand by our discussion in chambers. \"THE COURT: All right. I'm going to deny the request to use any Molineux evidence against Mr. Sharp at trial. \"In regards to Sandoval, I reviewed the Sandoval application and if Mr. Sharp testifies I would not allow number 1, as far as moot. Number 2 is a violation. That would not be allowed. Number 3 is moot, not allowed. Number 4 is moot—is—let me see. That's just a felony conviction only, not the underlying facts. Number 5, I'd allow a misdemeanor, not the underlying facts. Number 6, the same, allow a misdemeanor, underlying facts. Number 7, the same, misdemeanor, underlying facts. Number 8 is currently pending in Monroe County Court sounds like, so that will not be allowed as it's currently pending, current status. \"[DEFENSE COUNSEL]: It is pending, your Honor. \"[PROSECUTOR]: Yes. \"[DEFENSE COUNSEL]: I do represent him on that. \"THE COURT: I'll not allow a pending charge to be used against him if he chooses to testify. \"[PROSECUTOR]: Okay. \"THE COURT: Okay. That is my ruling. Both parties have exceptions on that ruling. Mr. Sharp, I'll see you back here Thursday at 2:00, sir.\" The case proceeded to a bench trial. The prosecution's evidence included the testimony of an officer involved in defendant's {**42 NY3d at 373} arrest, who stated that he observed defendant holding what appeared to be a handgun in the area where the police recovered the weapon. The prosecution also presented surveillance footage that they argued showed defendant carrying and hiding the handgun. Defense counsel referred to this footage to discredit the officer, asserting that his testimony was inconsistent with the video images and, more generally, to dispute that defendant possessed the weapon in question. The trial court found defendant guilty on both counts and sentenced him to a term of imprisonment and postrelease supervision. The Appellate Division affirmed with one Justice dissenting (214 AD3d 1428 [4th Dept 2023]). The sole issue dividing the Court was defendant's claim that he was denied his right to be present during consideration of the prosecution's Sandoval application. The majority concluded that defendant had not been denied this right. The dissent concluded that defendant, although present for the later Sandoval proceeding, was denied an opportunity to meaningfully participate ( see id. at 1429 [Curran, J., dissenting]). The dissenting Justice granted defendant leave to appeal. Defendant argues that the court violated his right to be present during a material stage of his prosecution by failing to provide him the opportunity for meaningful participation at the in-chambers Sandoval hearing. The prosecution concedes that the defendant was not present for the in-chambers conference but responds, first, that the conference was not a Sandoval hearing at which defendant had a right to be present because the court rendered no decisions and, second, that the court cured any error by conducting a de novo hearing in defendant's presence. [*3] Criminal Procedure Law § 260.20 requires that \"[a] defendant must be personally present during the trial of an indictment.\" This section confers upon a defendant the right to be present at proceedings \"where [the] defendant has something valuable to contribute\" ( People v Morales , 80 NY2d 450, 456 [1992]), including \"the substantive portion of [a] Sandoval hearing\" concerning the defendant's prior convictions ( People v Favor , 82 NY2d 254, 265 [1993]; see Dokes , 79 NY2d at 662). As the Court explained in Dokes : \"the potential for meaningful participation by the defendant during the determination of the merits of a Sandoval motion is apparent. For example, the {**42 NY3d at 374} defendant is in the best position to point out errors in [their criminal record], to controvert assertions by the prosecutor with respect to uncharged acts and to provide counsel with details about the underlying facts of both charged and uncharged acts. In short, the defendant's presence will help to ensure that the court's determination will not be predicated on the prosecutor's 'unrebutted view of the facts' \" (79 NY2d at 661, quoting People v Ortega , 78 NY2d 1101, 1103 [1991]). \"[P]rejudice is inherent when a defendant is deprived of the opportunity for meaningful participation\" on a Sandoval application ( Favor , 82 NY2d at 267). Contrary to the prosecution's assertion, defendant had a right to be present at the initial, in-chambers conference on the prosecution's application. We confronted the same issue in People v Monclavo (87 NY2d 1029 [1996]). There, the trial court conducted \"a preliminary informal Sandoval conference\" without defendant, during which the court indicated how it would rule on the prosecution's application ( id. at 1030 [internal quotation marks omitted]). Later, in the defendant's presence, the court reiterated its decision ( see id. at 1031). We explained that even if the court only \"formally\" announced its decision in the subsequent proceeding, it nonetheless had erred, because \"the facts surrounding defendant's extensive felony and misdemeanor history were not discussed at that time\" ( id. at 1030-1031 [internal quotation marks omitted]). Here, counsel's argumentation and discussion of the facts underlying the defendant's prior convictions occurred only in chambers and outside defendant's presence. It is precisely a defendant's knowledge of those facts that underlies the right to be present for a Sandoval hearing ( see Dokes , 79 NY2d at 661; id. at 660 [\"In determining whether a defendant has a right to be present during a particular proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position\"]). Defendant's absence from the in-chambers conference therefore violated that right. Where a court has violated a defendant's right to attend in-person, the court may, nevertheless, provide \"the opportunity for meaningful participation\" in a subsequent proceeding ( Favor , 82 NY2d at 267). Here, however, the subsequent in-court proceeding did not cure the violation. {**42 NY3d at 375} As a preliminary matter, we reject the prosecution's suggestion that defendant's mere awareness in advance that the prosecution had filed a Sandoval application is the equivalent of an opportunity to participate. Notice is a precondition to the effective exercise of the right to participate but is no substitute for the right itself, which requires a defendant's physical presence at a time when they can \"point out [factual] errors\" in the record, \"controvert assertions by the prosecutor,\" and \"provide counsel with details about the underlying facts\" ( Dokes , 79 NY2d at 661). Nor did defense counsel's presence or comments in court satisfy CPL 260.20's mandate. The right to be present during the trial belongs to the defendant personally, not to defense counsel. Here, the court asked defense counsel if defense counsel \"want[ed] to be heard,\" and counsel responded that he would rely on the in-chambers discussion. The court did not, however, ask defendant if he wished to be heard. Defendants generally are not permitted to speak directly to the court unless so instructed, but rather must communicate through counsel. Nor did the court meaningfully explain to defendant the nature of the proceeding. Further, the prosecution concedes that the court's statement to counsel alone could not have cured an earlier violation of defendant's rights. Under these circumstances, defense counsel did not bind defendant merely by declining to present new arguments, and defendant's silence, without more, cannot be construed as the knowing and intelligent waiver of defendant's right to participate ( see People v Smith , 82 NY2d 254, 268 [1993] [\"In view of the significant potential for meaningful [*4] participation by the defendant, there would seem to be little sound reason, short of an affirmative waiver, for excluding the defendant from any aspect, informal or formal, of the Sandoval proceeding\"]). Finally, the court's recitation of its Sandoval rulings in defendant's presence could not cure its earlier error. The court did not entertain argument on the Sandoval motion, did not articulate the arguments that had been made or the reasoning for its various decisions, referred to defendant's prior convictions by number only (as enumerated in the prosecution's application), and did not invite any participation from the defendant. This is even less than what occurred in Monclavo , where this Court held that the trial court's \"repetition or recitation in the defendant's presence of what ha[d] already been determined in his absence\" was insufficient to cure the earlier {**42 NY3d at 376} error (87 NY2d at 1031). A defendant has a right to hear the arguments and facts relevant to the determination of the Sandoval motion in order to meaningfully participate. The remedy for a violation of this right is reversal and remittal for a new trial ( see Dokes , 79 NY2d at 662). As to defendant's remaining claims, given that defendant is entitled to a new trial, we have no occasion to address defendant's claim that he was denied effective appellate review due to the loss of certain trial exhibits. In any event, we note that the prosecution has informed us, and defendant does not dispute, that the exhibits have been located and turned over to appellate defense counsel. Defendant's other claim, that his firearm convictions violate his Second Amendment rights as recognized by the United States Supreme Court in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]), was raised for the first time before the Appellate Division and is therefore unpreserved ( see People v David , 41 NY3d 90 , 96 [2023]; People v Cabrera , 41 NY3d 35 , 46 [2023]). Accordingly, the order of the Appellate Division should be reversed and a new trial ordered. Chief Judge Wilson and Judges Garcia, Singas, Cannataro, Troutman and Halligan concur. Order reversed and a new trial ordered."
},
{
"from": "gpt",
"value": "Reversed and new trial ordered \"The trial court held a conference in\ndefendant's absence on the prosecution's motion to cross-examine him on\nhis prior criminal conduct, in violation of his right to be present (see CPL\n260.20; People v Dokes, 79 NY2d 656, 662 [1992]). The court held a\nsubsequent hearing on the motion in defendant's presence. However, the\ncourt did not hear arguments on the merits, did not confirm defendant's\nunderstanding of the underlying facts or the merits of the application, and\nmerely announced its decision. Thus, the subsequent proceeding did not\nprovide for defendant's meaningful participation in the determination of\nthe merits of the motion and did not cure the earlier violation.\n\""
}
]
|
2024.04042 | [
{
"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 Anderson 2024 NY Slip Op 04042 [229 AD3d 1384] July 26, 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 Jeffrey Anderson, Appellant. Julie Cianca, Public Defender, Rochester, Banasiak Law Office, PLLC (Piotr Banasiak of counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), for respondent. Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), rendered February 25, 2019. The appeal was held by this Court by order entered June 30, 2023, decision was reserved and the matter was remitted to Monroe County Court for further proceedings (217 AD3d 1560 [4th Dept 2023]). The proceedings were held and completed (Douglas A. Randall, J.). It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) and course of sexual conduct against a child in the second degree (§ 130.80 [1] [a]). We previously held this case, reserved decision, and remitted the matter to County Court for a reconstruction hearing on whether defendant was present during the Sandoval conference ( People v Anderson , 217 AD3d 1560 [4th Dept 2023]). Upon remittal, the court held a reconstruction hearing and determined that the Sandoval proceedings had been held outside of defendant's presence. Where a defendant is denied the right to be present during a Sandoval hearing, reversal of defendant's conviction is required ( see People v Dokes , 79 NY2d 656, 658 [1992]; see also CPL 260.20), unless \"defendant's presence at the hearing would have been superfluous\" ( People v Cooper , 159 AD3d 1446 , 1447 [4th Dept 2018] [internal quotation marks omitted]; see generally People v Odiat , 82 NY2d 872, 874 [1993]). Here, it cannot be said that defendant's presence at the hearing would have been superfluous because the court's ruling was a compromise and thus, it was not \"wholly favorable to defendant\" ( Cooper , 159 AD3d at 1447). Defendant additionally contends that the conviction of course of sexual conduct against a child in the first degree is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. Viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621 [1983]), we conclude that the conviction of course of sexual conduct against a child in the first degree is supported by legally sufficient evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Moreover, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence ( see Bleakley , 69 NY2d at 495). Present—Smith, J.P., Bannister, Montour and Greenwood, JJ."
},
{
"from": "gpt",
"value": "Where a defendant is denied the right to be present during a Sandoval\nhearing, reversal of defendant's conviction is required unless \"defendant's\npresence at the hearing would have been superfluous\" Here, it cannot be\nsaid that defendant's presence at the hearing would have been superfluous\nbecause the court's ruling was a compromise and thus, it was not \"wholly\nfavorable to defendant.\n\""
}
]
|
2024.06667 | [
{
"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 Boone 2024 NY Slip Op 06667 [233 AD3d 623] December 31, 2024 Appellate Division, First 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 Michael Boone, Appellant. Feldman & Feldman, Manhasset (Steven A. Feldman of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Rachel Bond of counsel), for respondent. Judgment, Supreme Court, New York County (Charles Solomon, J., at pretrial proceedings; Laura Ward, J., at suppression hearing; Robert Mandelbaum, J., at trial and sentencing), rendered November 10, 2016, convicting defendant, after a jury trial, of robbery in the first degree and criminal possession of a weapon in the third degree, and sentencing him to a term of 20 years with five years of postrelease supervision on the first-degree robbery count, to run concurrently to a term of 2 1/3 to 7 years on the third-degree weapon possession count, for an aggregate term of 20 years, followed by five years of postrelease supervision, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the first-degree robbery count to 16 years, to run concurrently with the sentence on the third-degree weapon possession count, for a new aggregate term of 16 years followed by five years of postrelease supervision, and otherwise affirmed. Defendant's legal insufficiency claim is unpreserved, and we decline to consider it in the interest of justice. As an alternative holding, we find that the verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349 [2007]; see also People v Baque , — NY3d &mdash, 2024 NY Slip Op 05244 [2024]). Initially, there is no basis to disturb the jury's credibility determinations. Three witnesses testified consistently about how defendant displayed a knife, placed it up to the face of one victim, and demanded that all three give him money. There was ample basis for the jury to conclude that defendant's display of the knife constituted use or threatened use of a dangerous instrument, even if the blade of the knife itself was not actually pointed directly at any of the victims' faces ( see People v Samuel , 223 AD3d 479 , 480 [1st Dept 2024], lv denied 41 NY3d 985 [2024]; People v Rivera , 272 AD2d 140, 140 [1st Dept 2000], lv denied 95 NY2d 857 [2000]; People v Thomas , 161 AD2d 543, 543 [1st Dept 1990], lv denied 76 NY2d 866 [1990]). Defendant was not deprived of his constitutional right to self-representation. We find that he did not make a clear and unequivocal request to represent himself ( see People v LaValle , 3 NY3d 88 , 106 [2004]), and the references to self-representation were made in the context of, or overshadowed by, other complaints ( see People v Payton , 45 NY2d 300, 314 [1978], revd on other grounds 445 US 573 [1980]; People v Cornelius , 132 AD3d 495 , 495-496 [1st Dept 2015], lv denied 26 NY3d 1087 [2015]). In any event, the record establishes that defendant abandoned his request to represent himself ( see People v Berrian , 154 AD3d 486 , 487 [1st Dept 2017], lv denied 30 NY3d 1103 [2018]; People v Little , 151 AD3d 531 , 531-532 [1st Dept 2017], lv denied 30 NY3d 951 [2017]). After mentioning proceeding pro se, defendant agreed with the court to attempt to resolve his disputes with counsel before further [*2] addressing his representation at a later time. He then acquiesced in the appointment of new counsel, asked the court to assign him a specific attorney of his choosing, and attempted to retain his own attorney. Defendant was represented by counsel for over two years before he then made another untimely request to represent himself. The court properly determined that the search of defendant's duffle bag at the scene was justified as a search incident to a lawful arrest, and that the search was supported by exigent circumstances ( see People v Jimenez , 22 NY3d 717 [2014]). We perceive no basis to disturb the court's credibility determinations following the hearing. The hearing evidence established that the police had received a report that defendant was armed with a knife, and the bag was in his grabbable area at the time of his arrest ( id. at 721; People v Smith , 59 NY2d 454, 458 [1983]). The search took place immediately after his arrest, was conducted before the police obtained exclusive control of the bag, and before there was no longer a possibility that defendant would gain access to it to seize a weapon or destroy property ( see People v Wylie , 244 AD2d 247, 250 [1st Dept 1997], lv denied 91 NY2d 946 [1998]; cf. People v Morales , 126 AD3d 43 , 46 [1st Dept 2015]). In any event, we find that any error in admitting the items recovered from the bag was harmless in light of the other overwhelming evidence of defendant's guilt ( see generally People v Crimmins , 36 NY2d 230, 241-242 [1975]). Defendant's claim that the court violated his constitutional rights by limiting his ability to elicit hearsay testimony from one of the testifying officers is unpreserved ( see People v Lopez , 122 AD3d 511 , 511 [1st Dept 2014], lv denied 24 NY3d 1220 [2015]), and we decline to consider this claim in the interest of justice. As an alternative holding, we find that defendant did not make an adequate showing to warrant admission of this hearsay evidence ( see People v Burns , 6 NY3d 793 , 795 [2006]; People v Davidson , 121 AD3d 612 , 613 [1st Dept 2014], lv denied 25 NY3d 988 [2015]). Defendant's claim that hearsay exceptions apply is also unpreserved, and we decline to consider this claim in the interest of justice as well. In any event, we find that defendant did not lay a proper foundation to establish that the statement was admissible as either an excited utterance ( see generally People v Carroll , 95 NY2d 375, 385 [2000]) or as a present sense impression ( see generally People v Cantave , 21 NY3d 374 , 382 [2013]). The court properly denied defendant's request to dismiss one juror who was observed to be closing his eyes. The juror assured the court he was not sleeping and was paying attention to the evidence, even though he sometimes closed his eyes while he listened ( see People v Herring , 19 NY3d 1094 , 1095-1096 [2012]; People v Thomas , 129 AD3d 1110 , 1110 [2d Dept 2015], lv denied 26 NY3d 972 [2015]; People v Jorge , 23 AD3d 254 , 254 [1st Dept 2005], lv denied 6 NY3d [*3] 814 [2006]). We find that no further inquiry was required, and we perceive no basis in the record to disturb the court's finding that the juror was not sleeping. The court properly denied defendant's request to submit robbery in the third degree as a lesser included offense, since there was no reasonable view of the evidence that would support a finding that defendant committed only the lesser offense but not the greater ( see generally People v Glover , 57 NY2d 61, 63 [1982]). More specifically, there was no reasonable view of the evidence that defendant used physical force in the commission of this robbery other than through the use or threatened use of a knife ( see People v Pearson , 67 AD3d 600 , 600-601 [1st Dept 2009], lv denied 14 NY3d 804 [2010]; see People v Rivera , 262 AD2d 17, 17 [1st Dept 1999], lv denied 93 NY2d 1025 [1999]). Defendant's constitutional arguments concerning his sentence are unpreserved. Nonetheless, we conclude that the sentence should be reduced in the interest of justice to the extent indicated. We have considered defendant's remaining arguments, including the various arguments raised in defendant's pro se submissions, and find them unavailing. Concur—Renwick, P.J., González, Rodriguez, Higgitt, Rosado, JJ."
},
{
"from": "gpt",
"value": "Defendant not wrongly denied the right to represent himself. Request was\nnot \"clear and unequivocal,\n\" and the references to self-representation\n\"were made in the context of, or overshadowed by, other complaints.... In\nany event, the record establishes that defendant abandoned his request to\nrepresent himself....\n\""
}
]
|
2024.05175 | [
{
"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 Blue 2024 NY Slip Op 05175 [42 NY3d 584] October 22, 2024 Halligan, J. Court of Appeals 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 Anthony Blue, Appellant. Argued September 10, 2024; decided October 22, 2024 People v Blue , 202 AD3d 546 , affirmed. {**42 NY3d at 587} OPINION OF THE COURT Halligan, J. Defendant Anthony Blue challenges his criminal conviction for five counts of second-degree burglary. Blue argues that a criminal defendant cannot make a knowing, voluntary, and intelligent waiver of the right to counsel unless the trial judge specifically apprises the defendant of his maximum sentencing exposure in years. Rather than imposing a bright-line rule such as this, we have said that a court must ensure a defendant is adequately warned of the dangers and disadvantages of {**42 NY3d at 588} self-representation before allowing him to proceed pro se. A review of the record here confirms that Blue had such an understanding at the time he waived his right to counsel. Blue also argues that his indictment should have been dismissed on statutory speedy-trial grounds. CPL 30.30 (4) (d), broadly speaking, excludes from the time chargeable to the People a reasonable period of delay when a defendant is joined for trial with a codefendant. Blue contends this provision does not apply to prearraignment time, but the Appellate Division correctly concluded that it does. Thus the 57 days between indictment and arraignment chargeable to Blue's codefendant were also chargeable to Blue, even though he had not yet been arraigned. For these reasons, we affirm the order of the Appellate Division. I. We recount only the facts essential to the issues before us. On March 25, 2013, a grand jury returned a single indictment charging Blue and his codefendant Carnona Puello with six counts of second-degree burglary ( see Penal Law § 140.25 [2]) arising from a series of burglaries in the Washington Heights area of Manhattan. Blue and Puello previously had been arrested on August 27, 2012, but that case was dismissed and Blue was released. [*2] At some point between his release and the arraignment on the indictment that was scheduled for March 28, 2013, Blue traveled from New York to Florida. He did not appear for arraignment at the scheduled time, but Puello did. On April 17, 2013, Puello requested a motion schedule, and the court, after an extension, set June 26, 2013 as its date of decision. [FN1] After law enforcement located and apprehended Blue in Florida, he appeared for arraignment on June 13, 2013—80 days after his indictment and 57 days after Puello's request for an adjournment. Blue was represented by court-appointed counsel when he appeared for arraignment, but by early 2014 he asked the trial court to proceed pro se. The court first addressed Blue's motion at an appearance on January 8, 2014. It advised Blue that waiving his right to counsel would be \"a big mistake\" because he \"face[d] a lot of jail time.\" Blue persisted in his request, and {**42 NY3d at 589} the court reiterated that he was making \"a mistake,\" asked him to think more about his decision, and decided to hold the motion over until Blue's next appearance. When Blue next appeared on February 3, 2014, he insisted that he still wanted to waive his right to counsel. The trial court engaged Blue in a colloquy to determine whether his waiver was knowing, voluntary, and intelligent. It explained, among other things, the nature of the charges against Blue and the dangers and disadvantages of representing oneself in a criminal proceeding. Blue stated that he understood the consequences of his decision. Specifically, he confirmed that he understood that \"many pro se representations are not successful\"; that he would \"be held to the same legal standards\" as an attorney; that he would be \"foregoing the benefits of courtroom experience and legal training possessed\" by his court-appointed attorney; and that he believed he was \"capable of representing [himself] in this case.\" On the last point, Blue informed the court that he had \"been involved in the criminal justice system before,\" and that he had \"read [a] criminal advocacy law book\" and \"been in debate classes.\" The court also explained to Blue that he was entitled to standby counsel, but Blue waived that right too, stating, \"I'm positive. I waive standby counsel also.\" Following this colloquy, the court was satisfied that Blue's \"request [was] unequivocal\" and that his decision \"to give up [his] right to be represented by a lawyer [was] knowingly and intelligently made.\" It then granted Blue's request to proceed pro se. Over the course of the proceedings, Blue filed several motions to dismiss the indictment on statutory speedy-trial grounds. Relevant here is Blue's first motion, filed on April 8, 2014, in which he argued that \"[a]ll the time between March 25, 2013, to June 13, 2013, is chargeable to the People\" because he \"was never notified of the proceedings\" and \"could not have voluntarily absented himself from a hearing for which he was not informed.\" The People responded that the entire period should be excluded from the speedy-trial calculation under CPL 30.30 (4) (c) (i) because Blue fled to Florida after learning he had been indicted. Blue denied this allegation, insisting that he had no knowledge of the indictment when he left New York. Supreme Court denied Blue's motion. It acknowledged the factual dispute over whether Blue left the state to avoid apprehension, but concluded that there was no need to resolve it. {**42 NY3d at 590} Instead, relying on CPL 30.30 (4) (d), the court found that Blue's speedy-trial clock stopped on April 17, 2013, when Puello asked for an adjournment to file pretrial motions. Because Puello had not requested motion practice until 23 days after the indictment was filed, the court concluded that \"at most 23 days of [the 80-day period between Blue's indictment and arraignment] would be\" chargeable to the People. In that order, Supreme Court also determined that an additional 70 days were chargeable to the People on other grounds. That brought the speedy-trial clock up only to 93 days—far short of the six-month limit that would require dismissal. [*3] A year later, Blue filed another motion to dismiss pursuant to CPL 30.30. He argued that certain periods subsequent to his earlier motions were chargeable and reiterated his position that the period from March 25, 2013 to June 13, 2013 was chargeable as well. Supreme Court agreed that some additional periods of time postdating its earlier order were chargeable to the People, and further found that, even assuming the entire 80-day period between Blue's indictment and arraignment was chargeable, \"no more than 174 days are chargeable to the People.\" The court therefore denied that motion as well. The case proceeded to trial, and a jury found Blue guilty on five of the six counts. Supreme Court sentenced Blue to consecutive terms amounting to 25 years in prison followed by five years of postrelease supervision. Blue appealed the judgment as well as the subsequent denial of his CPL 440.10 motion, which was based, among other things, on the alleged CPL 30.30 violation. On the speedy-trial issue, the Appellate Division rejected Blue's contention that the entire period between his indictment and arraignment was chargeable to the People, but agreed that the period from March 25, 2013, to April 17, 2013, was chargeable ( see 202 AD3d 546, 547 [1st Dept 2022]). [FN2] The Court also found that the trial court had improperly excluded an unrelated 12-day period in November 2014 ( see id. ). Those determinations, taken together, brought the amount of time {**42 NY3d at 591} chargeable to the People to only 180 days, [FN3] and accordingly the Appellate Division agreed that Blue's motion to dismiss the indictment should be denied ( see id. ). The Appellate Division also rejected Blue's argument, made for the first time on appeal, that the trial court should have suppressed text messages obtained pursuant to a warrant to search his cell phone because the warrant was executed \"more than ten days after the date of issuance,\" and, according to Blue, thus violated CPL 690.30 (1). The Appellate Division determined there was no statutory violation and affirmed the conviction ( see 202 AD3d at 547). A Judge of this Court granted Blue leave to appeal (39 NY3d 984 [2022]). II. We begin with Blue's challenge to the validity of his waiver of his constitutional right to counsel. It is well-established that a defendant may choose to proceed pro se ( see People v McIntyre , 36 NY2d 10, 14-15 [1974]; Faretta v California , 422 US 806, 827-830 [1975]). Because this decision requires a disavowal of the constitutional right to counsel and the many benefits associated with legal representation, \"a defendant must make a knowing, voluntary and intelligent waiver of\" that right ( People v Arroyo , 98 NY2d 101, 103 [2002]). A trial court must undertake a \"searching inquiry\" in assessing whether a defendant's waiver meets this standard ( People v Providence , 2 NY3d 579 , 582 [2004] [internal quotation marks omitted]). That \"inquiry encompasses consideration of a defendant's pedigree since such factors as age, level of education, occupation and previous exposure to the legal system may bear on a waiver's validity\" ( People v Crampe , 17 [*4] NY3d 469, 482 [2011]). Furthermore, it must be \"aimed at insuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel\" ( Providence , 2 NY3d at 582 [internal quotation marks omitted]; see also People v Vivenzio , 62 NY2d 775, 776 [1984]). As the U.S. Supreme Court put it, a trial court must assure itself that the defendant \"knows what he is doing and his choice is made with eyes open\" ( Faretta , 422 US at 835, quoting Adams v United States ex rel. McCann , 317 US 269, 279 [1942]). {**42 NY3d at 592} Mindful that \"there is simply no one-size-fits-all format for a searching inquiry\" ( Crampe , 17 NY3d at 483), \"we have eschewed application of any rigid formula and endorsed the use of a nonformalistic, flexible inquiry\" ( Arroyo , 98 NY2d at 104). We have required that the colloquy \"adequately warn[ ] a defendant of the risks inherent in proceeding pro se , and appris[e] a defendant of the singular importance of the lawyer in the adversarial system of adjudication\" ( People v Smith , 92 NY2d 516, 520 [1998]). When a defendant challenges the validity of their waiver on appeal, \"a reviewing court may look to the whole record, not simply to the questions asked and answers given during a waiver colloquy,\" to determine whether the defendant effectively waived counsel ( Providence , 2 NY3d at 581). In reviewing the record, \"[t]he critical consideration is defendant's knowledge at the point in time when he first waived his right to counsel\" ( Crampe , 17 NY3d at 483). Although post-colloquy proceedings cannot \"retrospectively 'cur[e]' \" an invalid waiver, \"the record as a whole may . . . be considered when a court assesses whether the accused [was] aware of the dangers of self-representation\" at the time of the waiver colloquy ( id. ). Blue argues that his waiver was deficient in only one respect: the trial court did not expressly lay out during the waiver colloquy the range of allowable punishments—including the maximum number of years of potential imprisonment—that Blue might face if convicted. That position finds support in at least one decision from the First Department, which held that the trial court was required to inform a defendant during the colloquy of their \"actual sentencing exposure\" ( see People v Rodriguez , 158 AD3d 143 , 152-153 [1st Dept 2018]; but see People v Rogers , 186 AD3d 1046 , 1048 [4th Dept 2020] [declining to follow Rodriguez ]) . But neither this Court nor the U.S. Supreme Court have required a specific recitation of maximum potential years of imprisonment as part of a valid waiver colloquy. To the contrary, we have declined to impose particularized requirements of this sort upon a trial court, instead instructing that the inquiry is flexible and should be aimed at achieving the goals outlined above ( see e.g. Providence , 2 NY3d at 583; Arroyo , 98 NY2d at 104; Smith , 92 NY2d at 520-521; see also Faretta , 422 US at 835). None of the cases Blue and the dissent marshal hold otherwise. In Von Moltke v Gillies (332 US 708 [1948]), a plurality of the U.S. Supreme Court emphasized that the validity of {**42 NY3d at 593} a waiver turns on the \"circumstances\" surrounding it ( id. at 723, 724). There, the defendant—the wife of an alleged German spy who was told only that she was being held indefinitely \"as a dangerous enemy alien\"—was briefly assigned an attorney who agreed to represent her for \"only two or three minutes\" at arraignment, but she otherwise had \"no legal counsel upon whom to rely except the government lawyer-agents\" who would prosecute her case ( id. at 711, 722, 716-717). Throughout the proceedings, the defendant gave no indication that she was aware \"a sentence of death could be imposed under the charges\" ( id. at 718); witness testimony revealed the defendant's \"perplexity,\" \"doubt,\" and \"uncertainty\" leading up to her decision to plead guilty; and the record revealed no \"explanation of the implications of the indictment or of the consequences of her plea\" ( id. at 725, 717). On those facts, the plurality found her waiver of counsel invalid and noted that information \"essential to a [defendant's] broad understanding of the whole matter\" included \"an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, [and] possible defenses to the charges and circumstances in mitigation thereof\" ( id. at 724). [*5] Our analysis in Matter of Lawrence S. (29 NY2d 206 [1971]) was along similar lines. We noted that the case involved a \"13-year-old respondent,\" and that \"with respect to a juvenile charged as a delinquent, the courts have imposed particularly strict requirements before permitting a waiver of his right to counsel\" ( id. at 209, 208). We found the waiver invalid not because the court failed to make any particular statement during the colloquy regarding the potential years of imprisonment faced by the defendant, but because the court's inquiry did not sufficiently account for the youth and inexperience of the defendant ( see id. at 208-209). Nor does Iowa v Tovar (541 US 77 [2004]) mandate that a colloquy include any specific, formulaic statements regarding the precise number of years of incarceration a defendant might face. In Tovar , the U.S. Supreme Court unanimously reversed a state court decision requiring trial courts to give specific warnings to a defendant during a waiver colloquy ( see id. at 81). The Court found the colloquy at issue sufficient even without these warnings because the defendant was informed of the charges against him, his right to counsel, and the range of allowable punishments ( see id. ). While finding those factors {**42 NY3d at 594} relevant, the Court did not hold it constitutionally necessary to provide each of those three specific items of information during a colloquy. Indeed, the Court stressed that it has never \"prescribed any formula or script to be read to a defendant\" during a colloquy, and that its \"decisions indicate\" that \"[t]he information a defendant must possess in order to make an intelligent election . . . will depend on a range of case-specific factors\" ( id. at 88; see also id. at 92). Thus, as we previously have explained, Tovar reaffirms that \"the scope of a searching inquiry turns on the context in which the right to counsel is waived,\" rather than declaring a new rule for assessing the validity of a waiver ( Crampe , 17 NY3d at 483; see also id. at 484, citing & discussing Tovar , 541 US at 89). [FN4] [1] The question before us, then, is whether Blue was adequately warned of the dangers of proceeding pro se when he waived his right to counsel. Our review of the whole record satisfies us that he was. The proceedings prior to the colloquy establish that Blue was aware that he likely would serve a lengthy prison sentence if convicted. At arraignment, the People informed the court in Blue's presence that \"the defendant is charged with six C violent felonies and faces substantial time.\" Then, while conversing with the defense counsel, the court explained that \"[t]he defendant faces a mandatory state prison sentence and could get consecutive sentences. He is clearly facing a lot of time.\" That remark prompted the People to clarify the sentence they would seek: \"The People in this case are recommending 12 years jail with five years [*6] post release supervision.\" Later, on {**42 NY3d at 595} January 8, 2014, when the court first addressed Blue's motion to proceed pro se, Blue explicitly stated that he understood he might serve a significant sentence: \"THE DEFENDANT: I still would like to waive counsel and proceed pro se. \"THE COURT: That's a big mistake. You face a lot of jail time. \"THE DEFENDANT: I understand, your Honor, but I am making my decision. . . . \"THE COURT: It's a big mistake. . . . \"THE DEFENDANT: So what is the decision for the pro se? \"THE COURT: I want you to think about that. That's a mistake. I am going to ask you a lot of questions on February 3rd. \"THE DEFENDANT: I understand.\" In light of these exchanges during pre-colloquy proceedings, it is clear that Blue had an understanding of the extent of his potential sentencing {**42 NY3d at 596} exposure by the time the trial court conducted its waiver inquiry on February 3, 2014. Then, during the colloquy, Blue informed the court that he had been through a trial before and that he understood he was charged with \"[b]urglary [in] the second degree.\" He also told the court that he had discussed a potential plea bargain—what he called a \"cop out\"—and the strength of the People's evidence with his court-appointed attorney, indicating that he understood he faced an even longer sentence than the 12 years of imprisonment and five years of postrelease supervision that the People sought. Nothing in the post-colloquy proceedings suggests Blue did not apprehend the extent of his potential sentencing exposure. During an appearance on September 29, 2014, the court noted that Blue's \"exposure in this case is huge\" and that he could \"go to jail for 25, 30, [or] 40 years,\" to which Blue replied that he was \"aware\" and understood. The court later informed Blue, during discussion of a possible plea, that his exposure was \"way, way beyond five years\" and Blue said, \"I'm fully aware of it. I'm fully aware.\" These proceedings confirm what was apparent from the pre-colloquy proceedings: Blue had an understanding of the extent of his potential sentencing exposure at the time he elected to waive his right to counsel. [FN5] We thus find his waiver valid. [FN6] III. [*7] [2] We turn now to Blue's statutory speedy-trial claim. \"CPL 30.30 require[s] that the People be ready for trial within specific time periods that vary according to the level of offense charged\" ( People v Bay , 41 NY3d 200 , 207 [2023]). \"The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded\" ( People v Price , 14 NY3d 61 , 63 [2010]). When, as here, a defendant is charged with a felony, CPL 30.30 (1) (a) requires the People to be ready for trial within six months of the commencement of the criminal action. The parties agree that the People were required to declare readiness within 184 days, and that the Appellate Division properly charged 180 days to the People. They dispute whether the 57-day period from April 17, 2013, when Puello adjourned for motion practice, and June 13, 2013, when Blue was arraigned, should be excluded pursuant to CPL 30.30 (4) (d). The Appellate Division concluded that the period is not chargeable to the People. We agree. \"When resolving a question of statutory interpretation, the primary consideration is to ascertain and give effect to the legislature's intent\" ( People v Schneider , 37 NY3d 187 , 196 [2021]). As the clearest indicator of legislative intent, \"the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof\" ( People v Golo , 26 NY3d 358 , 361 [2015] [internal quotation marks omitted]) . CPL 30.30 (4) (d) provides that \"the following period[ ] must be excluded\" from the speedy-trial clock: \"a reasonable {**42 NY3d at 597} period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial pursuant to this section has not run and good cause is not shown for granting a severance.\" The question before us is when a defendant is \"joined for trial\" with a codefendant: prior to arraignment, or, in cases where the defendant is not arraigned at the same time as his codefendants, only afterwards. The answer to that question is supplied by CPL 200.40, which sets forth \"[t]he three basic situations in which two or more defendants may be joined for trial\" (Peter Preiser, Prac Commentaries, McKinney's Cons Laws of NY, CPL 200.40). As relevant here, CPL 200.40 (1) (a) states that \"[t]wo or more defendants may be jointly charged in a single indictment provided that . . . all such defendants are jointly charged with every offense alleged therein.\" Blue and Puello were jointly charged in a single indictment with every offense alleged therein, and so Blue was joined for trial with his codefendant at the time of indictment, prior to his arraignment, for purposes of CPL 30.30 (4) (d). This interpretation is consistent with the purposes underlying the exclusion. We long have recognized that in the State of New York, \"a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses\" ( People v Mahboubian , 74 NY2d 174, 183 [1989]). CPL 30.30 (4) (d) furthers that policy by facilitating joint proceedings, easing the administration of multidefendant cases, and preventing defendants from benefitting from delays caused by codefendants who might, for example, make successive requests for adjournments ( see People v Chrysler , 152 AD3d 825 , 827 [3d Dept 2017], lv denied 30 NY3d 948 [2017]). We note that the federal courts have inferred the same purposes from near-identical statutory language ( see e.g. United States v Pena , 793 F2d 486, 489-490 [2d Cir 1986]). Blue argues that a defendant nonetheless cannot be joined for trial for purposes of CPL 30.30 (4) (d) until they have been arraigned. Arraignment confers jurisdiction over a defendant ( see People v England , 84 NY2d 1, 4-5 [1994]) and triggers various rights under the Criminal Procedure Law ( see CPL 210.15 [1], [2]). But these points do not necessarily compel the reading of CPL 30.30 (4) (d) that Blue advances. As an initial matter, the text of the provision does not differentiate between pre- and post-arraignment time. And we previously have {**42 NY3d at 598} recognized that the People may declare readiness before a defendant is arraigned and that certain prearraignment delays not attributable to the People may be excluded from the speedy-trial clock ( see e.g. People v Carter , 91 NY2d 795, 799 [1998]), confirming that time is not chargeable to the People simply because no court has jurisdiction over the criminal action and the defendant's rights have not yet attached under the Criminal Procedure Law. In the same vein, Blue argues that if the legislature had intended for the exclusion to apply before arraignment, then it would have expressly said as much. He suggests that we should infer from the absence of a clear statement applying the exclusion to prearraignment time that it applies only to post-arraignment time. The statutory scheme refutes the premise of this argument. Looking to the rest of CPL 30.30, we note that another provision distinguishes between pre- and post-arraignment time ( see CPL 30.30 [4] [i]). That express textual distinction shows that the legislature knew how to draft an exclusion that applies only to pre- or post-arraignment time, but did not do so in CPL 30.30 (4) (d). Blue also argues that the provision's reference to severance implicitly limits CPL 30.30 (4) (d) to post-arraignment time. The provision does not apply unless \"good cause is not shown for granting a severance\" (CPL 30.30 [4] [d]). Blue notes that severance is a remedy ordinarily available to a defendant only after they have been arraigned ( see CPL 255.20 [1]), and argues that it would not make sense for CPL 30.30 (4) (d) to apply before arraignment, when a defendant cannot sever their proceedings. We disagree. When the People seek to exclude time pursuant to CPL 30.30 (4) (d), a defendant may make a showing of good-cause severance not necessarily to sever the joint proceedings, but instead to charge that period of time to the People. Some defendants might wish only to charge additional time to the People, without actually severing the joint proceedings. And as at least one Appellate Division has recognized, the exclusion allows a defendant to show that he would have had good cause to sever at some earlier time ( see People v Vidal , 180 AD2d 447, 448-449 [1st Dept 1992]). Next, Blue argues that his interpretation of CPL 30.30 (4) (d) better reflects the purposes of the exclusion. He concedes that the exclusion is intended to prevent defendants from causing delays that inure to the benefit of codefendants, but says that a defendant cannot engage in this kind of gamesmanship {**42 NY3d at 599} until after they have been arraigned, precisely because they cannot file pretrial motions until that point ( see CPL 255.20 [1]). That may be so, but a codefendant, if arraigned, can still participate in that kind of gamesmanship. Further, Blue cannot square his interpretation with the other purposes of the provision, namely, to facilitate joint proceedings and ease administration of multidefendant cases. His interpretation would force the People to undertake the difficult task of maintaining a separate speedy-trial clock for each defendant in a joint proceeding, which might in turn necessitate separate trials—an outcome that would undermine a key purpose of the exclusion. Finally, Blue argues that even if a defendant can be \"joined for trial\" with a codefendant before he is arraigned, charging prearraignment time to the defendant would conflict with the statutory language that restricts exclusions to a \"reasonable period of delay\" (CPL 30.30 [4] [d]). According to Blue, it would be unreasonable to charge time to a defendant before a court has jurisdiction and before their rights under the Criminal Procedure Law have attached. But, as we have said, prearraignment delays not caused by the People may be charged to a defendant ( see Carter , 91 NY2d at 799), and Blue has not shown that charging Puello's prearraignment delay to him is unreasonable. In sum, we conclude that the Appellate Division properly excluded from the speedy-trial calculation the 57-day period between Puello's request to adjourn and Blue's arraignment. That leaves the speedy-trial clock at 180 days, four fewer than the maximum number of days to which the People are statutorily entitled. IV. [*8] Blue's remaining challenges are unpreserved or meritless. He argues that he is entitled to a new trial because text messages taken from his cell phone were improperly admitted into evidence in violation of CPL 690.30 (1), which governs the execution of search warrants. This argument is unpreserved. In supplemental pro se briefing, Blue also presents two additional statutory speedy-trial claims. The first of these remaining arguments is not sufficiently developed to establish a basis for reversal and the second is belied by the record. The order of the Appellate Division should be affirmed. Rivera, J. (dissenting). I would reverse and hold that the {**42 NY3d at 600} Constitution requires the trial court to explore whether a criminal defendant is aware of their sentencing exposure as part of its \"searching inquiry\" before they may proceed pro se ( People v White , 56 NY2d 110, 117 [1982]). [FN1] Here, the court failed to ensure that defendant was aware of the range of punishments allowable for the crimes as charged and a new trial is required. A defendant may waive their right to counsel and proceed pro se but only once the court has confirmed for itself that the defendant is aware of the risks of foregoing assistance of counsel ( Matter of Lawrence S ., 29 NY2d 206, 208 [1971], quoting Von Moltke v Gillies , 332 US 708, 724 [1948]; Iowa v Tovar , 541 US 77, 81 [2004]). The court's duty is not solely to inform defendants lacking the legal training and skills necessary to meaningfully defend against the prosecution of the dangers of self-representation. As the United States Supreme Court and this Court have explained, the duty entails much more. Before they may proceed pro se, a defendant must apprehend \"the nature of the charges, the statutory offenses included within them, [and] the range of allowable punishments thereunder,\" in addition to any other \"facts essential to a broad understanding of the whole matter\" ( Matter of Lawrence S. , 29 NY2d at 208, quoting Von Moltke , 332 US at 724). When assessing if the prosecution has met its burden of \"proving a knowing, intelligent and voluntary waiver,\" \"the courts must indulge every reasonable presumption against waiver\" ( People v Davis , 75 NY2d 517, 523 [1990], citing Brewer v Williams , 430 US 387, 404 [1977]). [*9] As the Supreme Court stated in Von Moltke v Gillies : \"The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before [them] demand\" ( {**42 NY3d at 601} 332 US 708, 723-724 [internal quotation marks omitted]). [FN2] A constitutionally valid waiver \"must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances\" ( id. at 724 [emphasis added]). In other words, judicial confirmation that the defendant appreciates each of these circumstances is a necessary component of the court's protective duty. It is not enough for the court to assume that, under the circumstances, the defendant probably appreciates the risks of going pro se—for the waiver to be valid, the court must create a record that establishes defendant's knowledge of those risks, including the defendant's sentencing exposure. The majority holding on the matter is unclear. Perhaps the majority means to say one of the following: (1) its flexible, case-by-case inquiry results in no actual requirement that the trial court ensure that a defendant have any comprehension of the range of punishments that they face; (2) there is some requirement that a defendant understand if they face prison time; (3) as long as the defendant is charged with a serious crime, they should know they face significant time; or (4) no constitutional problem arises if the defendant has some ballpark understanding of the amount of time they face, even if that is off by almost a decade. Whatever the majority intends, its analysis disregards the import of Supreme Court and Court of Appeals precedent establishing a more straightforward, workable requirement that a court ascertain whether a defendant has an understanding of the range of allowable punishments they face before they may validly waive counsel. {**42 NY3d at 602} The majority misconstrues how this Court previously characterized the holding of Von Moltke . As explained in Matter of Lawrence S : [*10] \" 'To be valid', the Supreme Court declared in the Von Moltke case (332 U. S. 708, 724, supra ), 'such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder , possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter' \" (29 NY2d at 208-209 [emphases added]). While the Matter of Lawrence S. Court noted that the government must meet a particularly \"heavy burden\" to permit a juvenile to waive counsel, this did not—and, of course, could not—either raise or lower Von Moltke 's federal constitutional floor ( see Matter of Lawrence S. , 29 NY2d at 208). Matter of Lawrence S. merely confirmed the settled proposition that, as with waivers of constitutional rights generally, age is a factor that courts must consider when evaluating whether the record supports \" 'an intentional relinquishment or abandonment of a known right' \" to counsel ( United States ex rel. B. v Shelly , 430 F2d 215, 218 [2d Cir 1970], quoting Johnson v Zerbst , 304 US 458, 464 [1938], cited in Matter of Lawrence S. , 29 NY2d at 208). Accordingly, for juveniles, the last clause of the Von Moltke rule, \" and all other facts essential to a broad understanding of the whole matter,\" necessarily may include more (332 US at 724 [emphasis added]). Contrary to the majority's suggestion, nothing in Matter of Lawrence transforms the requirement for understanding the \"range of allowable punishments\" as optional. Here, defendant argues that the court's inquiry was deficient because it failed to confirm defendant's understanding of the range of allowable punishments. Defendant was charged with six counts of second-degree burglary ( see Penal Law § 140.25 [2]), and, according to the prosecution, faced a maximum sentencing exposure of 90 years, subject to a statutory 20 year cap (Penal Law § 70.30 [1] [e] [i]). [FN3] Defendant asserts that the court should have conducted the required \"searching inquiry\" about his awareness of the \"range of allowable punishments,\" {**42 NY3d at 603} including his maximum sentencing exposure. The court's failure to do so rendered his waiver of his right to counsel invalid. To the extent the majority describes how the court complied with its duty in other respects—informing defendant of the risks of self-representation—defendant does not challenge this aspect of the court's inquiry. The fact that the court's inquiry may have been adequate in other ways is beside the point, as it is irrelevant to the specific question before us of whether defendant understood the range of punishments. The majority clouds the issue by stating that there is no \"mandate that [*11] a colloquy include any specific, formulaic statements\" (majority op at &mdash). I agree that the Court has never imposed a catechism for ensuring a knowing, voluntary, and intelligent waiver. Nor has the Supreme Court, which has explained that a colloquy does not require \"any formula or script to be read to a defendant\" to be valid ( Tovar , 541 US at 88). But allowing courts flexibility in how they carry out their duty and how they communicate with a defendant has no bearing on what they must convey in order to comply with that duty and does not diminish a court's responsibility to make sure whatever is said and done complies with the Constitution. While a colloquy need not \"include any specific, formulaic statements regarding the precise number of years of incarceration a defendant might face,\" it still must address the range of allowable punishments (majority op at &mdash). Otherwise, a court cannot be certain that the defendant is making an informed decision to waive their constitutional right. The most obvious way a court may ensure that a defendant understands the range of punishments is to discuss the defendant's sentencing exposure with them while discussing the inherent risks of self-representation. But merely stating that a defendant faces incarceration, or \"a lot of time\"—as the court did here—is constitutionally inadequate. We have rejected similar {**42 NY3d at 604} language ( see e.g. People v Kaltenbach , 60 NY2d 797, 798-799 [1983] [\"The court's declarations—that defendant was entitled to be represented by a lawyer; that he was facing a serious charge; and that, if convicted, he could receive a year's imprisonment—did not satisfy the duty to make a searching inquiry\"]; [FN4] People v Sawyer , 57 NY2d 12, 21 [1982] [\"The court's declarations that defendant was 'facing a very serious charge' and that 'your own best interests are probably served by having a lawyer represent you' simply did not satisfy the duty to make a 'searching inquiry' \"]). The word \"range\" means \"the limits of a series : the distance or extent between possible extremes\" or \"the difference between the least and greatest values of an attribute\" (Merriam-Webster.com Dictionary, range [https://www.merriam-webster.com/dictionary/range]). A defendant understands \"the range of allowable punishments\" if that includes knowledge of the length of a possible confinement ( Von Moltke , 332 US at 724). The court may easily dispense with its duty by ensuring that a defendant knows the statutory maximum allowable under the Penal Law for each offense charged, that sentences on the offenses may run consecutively or be subject to enhancement, and the application of the statutory cap. The court may also rely on a clear record that defendant is aware of the potential years of confinement. Here, prior to accepting defendant's waiver of the right to counsel, the court did not inform him of the potential span of confinement or the maximum time he faced if convicted on all charges. Though the majority claims otherwise (majority op at &mdash), the record does not clearly support defendant's understanding of his sentencing exposure at that [*12] time. Defendant does not state his understanding of the potential sentence he faced, and his attorney provided no such information in defendant's presence on the record as to the time he would potentially serve. {**42 NY3d at 605} As the majority correctly recognizes, \"post-colloquy proceedings cannot 'retrospectively \"cure\" an invalid waiver' \" (majority op at — [brackets omitted], quoting People v Crampe , 17 NY3d 469, 483 [2011]). To the extent the majority asserts that defendant's post-waiver statements only confirm his pre-waiver understanding, the majority's assertion is no argument at all since it depends on a pre-waiver basis for concluding defendant had the requisite knowledge ( see Crampe at 483). So, we must look to the record before and at the time of the waiver. The majority claims that defendant \"was aware that he likely would serve a lengthy prison sentence if convicted\" (majority op at &mdash). The majority relies on the prosecution's in-court statement in defendant's presence that he was \"charged with six C violent felonies and faces substantial time\" ( id. ). This statement says nothing about the number of years in prison defendant faced. Reliance on such would also lead to the absurd result that mere knowledge of the crimes charged is sufficient to establish knowing, intelligent waiver of the right to counsel. The majority also points to the court's statement to defense counsel that \"defendant face[d] a mandatory state prison sentence and could get consecutive sentences. He is clearly facing a lot of time\" ( id. ). Statements to defense counsel are not the same as judicial inquiry of the defendant ensuring they understand those statements. They provide no basis for inferring that the defendant possesses a constitutionally-sufficient \"apprehension\" of the consequences of firing their lawyer and representing themselves ( Von Moltke , 332 US at 724). Moreover, the court's statement, like the prosecutor's, failed to put a numerical range to defendant's potential \"time\" in prison. There is no way around the Supreme Court's mandate that a constitutionally effective waiver requires that a defendant understand the range of punishments ( Tovar , 541 US at 81). \"Substantial\" means \"large\" and \"a lot\" means \"very much\" or \"a large number.\" The use of either or both these terms fails to convey the enormity of the potential sentence. Indeed, a person facing five years of incarceration would reasonably consider this to be substantial and a lot of time. Here, if found guilty, defendant faced decades in prison (Penal Law §§ 140.25 [2]; 70.00 [2] [c]). The expanse of that range of incarceration was certainly relevant to defendant's assessment of the risk of self-representation. The majority further notes that, in reaction to the court's statement, the prosecution represented that it was \"recommending 12 years jail with five years post release {**42 NY3d at 606} supervision.\" But that was a recommendation, and, in any case, not close to defendant's maximum sentencing exposure, even after applying the statutory cap. Lastly, the majority quotes defendant's statement during the court's first colloquy on January 8, 2014, as establishing that defendant understood he faced \"a significant sentence\" (majority op at &mdash). But that is not what defendant said. Rather, in response to the court's statement that defendant's request to waive counsel and proceed pro se would be \"a big mistake. You face a lot of jail time,\" defendant replied, \"I understand your Honor, but I am making my decision.\" The majority places undue weight on this one sentence; defendant's response in no way clarifies his understanding of what the court meant by a lot of time, and, more significantly, what defendant would consider to be a lot of time. That is why the Supreme Court has wisely interpreted the Constitution to require the court to confirm defendant understands the range of punishments, rather than an abstract reference to a \"substantial\" or \"a lot\" of time. [*13] Similarly, the majority states that defendant's description of the plea bargain as a \"cop out\" indicated that \"he understood he faced an even longer sentence than the 12 years of imprisonment and five years of post-release supervision\" (majority op at &mdash). This misrepresents the record by omitting crucial context: \"THE COURT: You've never discussed this case with your attorney at all? \"THE DEFENDANT: No. \"THE COURT: The strength of the People's case, none of that? \"THE DEFENDANT: Nothing. The only thing we've discussed is a cop out. We haven't discussed trial strategy, nothing. \"THE COURT: Well, when you discussed what you call 'a cop out,' is that a plea? \"THE DEFENDANT: Plea bargain, yes, sir. \"THE COURT: Didn't your attorney discuss with you the strength of the People's case, what their evidence is going to be? \"THE DEFENDANT: There is no evidence. {**42 NY3d at 607} \"THE COURT: That's not what I'm asking you. I'm asking you didn't your attorney tell you what the People say their evidence is going to be. You went over that? \"THE DEFENDANT: Yes. She told me something about some text messages. I haven't seen anything.\" There is nothing in this exchange that indicates defendant understood the upper and lower limit of the range of sentences he faced. To the extent that he did understand that the plea bargain offer meant he faced at least 12 years' incarceration, that figure was off by 40% since defendant actually faced 20 years in prison. It appears the majority has decided that 12 years is \"close enough\" to 20. Putting aside that the majority provides no normative basis for determining what is close enough to an actual range to satisfy the requirement—or to guide courts in the future—the difference between 12 and 20 years—almost a decade—is certainly not close enough by any rational metric. The majority confuses the method of informing the defendant of the range of punishments during the colloquy with whether the court needs develop a record indicating that the defendant knows about the range of punishments at all . By stretching beyond any permissible bounds of what a \"flexible inquiry\" may require, the majority concludes that this inquiry may be so flexible as to be functionally no inquiry at all that defendant comprehends the range of sentences they face ( People v Arroyo , 98 NY2d 101, 104 [2002]). Permitting \"a lot\" to satisfy the court's duty to inform defendant about the range of sentences they face makes the requirements of this inquiry so flexible as to be meaningless. [*14] Numbers matter. As I have stated previously, a defendant's sentencing exposure is perhaps the most important information necessary for a defendant to chart their course. It affects their decision whether to plead guilty, testify on their own behalf, and represent themselves without the assistance of a trained legal advocate ( Tovar , 541 US at 81; People v Bush , 38 NY3d 66 , 80 [2022, Rivera, J., dissenting]; People v Williams , 27 NY3d 212 , 226 [2016, Rivera, J., dissenting]). It is neither impossible nor a significant burden on the court to ensure defendant understands the range of punishments with some numerical reference. The Penal Law sets the potential sentence. To the extent the majority believes it is simply too much to expect and somehow too complex a calculus for a court to {**42 NY3d at 608} provide a range, then how can we expect a defendant to be more adept at determining their sentencing exposure? Courts can provide a defendant information about the range of their sentencing exposure and do so all the time. Since the Constitution tolerates nothing less, I dissent. Chief Judge Wilson and Judges Garcia, Singas, Cannataro and Troutman concur. Judge Rivera dissents in an opinion. Order affirmed. Footnotes Footnote 1: Puello eventually pleaded guilty to the charges and is not a party to this appeal. Footnote 2: Blue also argued that the entire 33-day period from May 11, 2015, to June 13, 2015, was chargeable to the People. The trial court charged part of that time to the People but found that the speedy-trial clock stopped on June 7, when Blue filed a motion to dismiss. Blue contended that the clock should not have stopped until June 13, 2015, apparently because he had mailed his motion from out of state. The Appellate Division did not expressly address this contested period. Footnote 3: Although the Appellate Division did not elaborate on this point, the parties agree that at least 180 days are chargeable to the People. Footnote 4: The dissent's reliance on People v Kaltenbach (60 NY2d 797 [1983]) and People v Sawyer (57 NY2d 12 [1982]) is misplaced ( see dissenting op at &mdash). Those decisions turned not on the absence of any particular statement from a waiver colloquy, but on the absence of a meaningful colloquy altogether. In Kaltenbach , the trial court undertook merely a \"precautionary inquiry\" consisting of statements \"that defendant was entitled to be represented by a lawyer,\" \"that he was facing a serious charge,\" \"and that, if convicted, he could receive a year's imprisonment\" (60 NY2d at 799). We held that absent \"further colloquy regarding defendant's decision\" to proceed pro se, these \"declarations . . . failed to adequately warn defendant of the risks inherent in representing himself or apprise him of the value of counsel\" ( id. at 798, 799 [internal quotation marks omitted]). We found the waiver in Sawyer invalid for the same reason: the trial court's \"precautionary inquiry\" consisted only of \"declarations\" to the defendant, rather than a \"colloquy on the record between the judge and defendant [to] test the defendant's understanding\" of his decision (57 NY2d at 21 [internal quotations marks omitted]). There is no question here that the trial court engaged in a colloquy with Blue to test his understanding of his request to proceed pro se. Footnote 5: The dissent dismisses the requirement that a defendant apprehend the extent of his potential sentencing exposure as \"unclear\" (dissenting op at &mdash), but it is difficult to ascertain exactly what obligation the dissent would impose ( see id. at &mdash, &mdash, &mdash, &mdash). If the dissent means to suggest that a trial court must inform a defendant of \"the statutory maximum allowable under the Penal Law for each offense charged, that sentences on the offenses may run consecutively or be subject to enhancement, and the application of the statutory cap\" ( id. at &mdash), there is, as we have explained, no precedent from the U.S. Supreme Court or this Court mandating such specificity. Footnote 6: After Blue's trial, the Model Colloquy was revised to include a statement of the defendant's potential sentencing exposure. As we have \"emphasized, the model charges contain the 'preferred phrasing' of legal instructions\" ( People v J.L. , 36 NY3d 112 , 122 [2020], quoting People v Cubino , 88 NY2d 998, 1000 [1996]). Footnote 1: I agree with the majority's disposition of defendant's other claims. Footnote 2: Von Moltke v Gillies (332 US 708) is a plurality opinion, but its \"range of allowable punishments\" requirement was adopted by a unanimous United States Supreme Court in Tovar (541 US at 81, 88-89) and by this Court in Matter of Lawrence S . (29 NY2d at 208). Footnote 3: This sentence would be deemed to be 20 years after applying the limitation on consecutive determinate sentences set forth in Penal Law § 70.30 (1) (e) (i). In People v Moore (61 NY2d 575, 578 [1984]), this Court explained that \"[w]here the aggregate maximum term of consecutive sentences imposed . . . exceeds the applicable limitation set forth in section 70.30 (subd 1, par [c]) of the Penal Law, the term shall be 'deemed' to be equal to that limitation and 'reduced' accordingly. The statute does not restrict the number or length of the individual consecutive sentences that may be imposed . . . it merely requires that the Department of Correctional Services calculate the aggregate maximum length of imprisonment consistent with the applicable limitation.\" @f2Accordingly, as conceded by the prosecution, defendant's maximum sentencing exposure—the incarceratory term the court could impose—was 90 years. Footnote 4: The majority incorrectly characterizes Kaltenbach as turning \"not on the absence of any particular statement from a waiver colloquy, but on the absence of a meaningful colloquy altogether\" (majority op — n 4; 60 NY2d 797, 798-799). Kaltenbach states that \"[t]here was no further colloquy regarding defendant's decision\" ( id. at 798 [emphasis added]), and \"[t]he court's declarations—that defendant was entitled to be represented by a lawyer; that he was facing a serious charge; and that, if convicted, he could receive a year's imprisonment—did not satisfy the duty to make a searching inquiry\" ( id. at 799). The Court continued that \"[t]he precautionary inquiry in this case\" was insufficient—in other words, it existed, but was not enough ( id. ). Here, too, there was a colloquy that was insufficiently searching to determine whether defendant comprehended the range of allowable punishments. "
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{
"from": "gpt",
"value": "Court rejected defendant's contentions that (1) he should not have been\nallowed to proceed pro se because the trial judge, in conducting the\ncolloquy re the waiver of the right to counsel, did not specifically advise\nhim of the maximum prison term he faced if convicted. "
}
]
|
2024.05152 | [
{
"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 Poulos 2024 NY Slip Op 05152 [231 AD3d 1273] 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] (October 17, 2024) The People of the State of New York, Respondent, v Tyson Poulos, Appellant. Paul J. Connolly, Delmar, for appellant, and appellant pro se. Jason M. Carusone, District Attorney, Lake George (Robert P. McCarty of counsel), for respondent. Mackey, J. Appeal from a judgment of the County Court of Warren County (John S. Hall Jr., J.), rendered June 29, 2016, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree and criminal sale of a controlled substance in the third degree (two counts). In January 2014, the Warren County Sheriff's Department received a tip from a confidential informant that defendant, who had an outstanding arrest warrant, was selling drugs out of room 118 at the Budget Inn Motel in the Town of Queensbury. Members of the Warren County Narcotics Enforcement Unit responded to the motel and proceeded to room 118, which was registered to defendant's girlfriend. Defendant and his girlfriend were both present and, after allegedly obtaining the girlfriend's consent, officers entered and searched the room, where they discovered heroin and crack cocaine, smaller quantities of other scheduled drugs and items that appeared to be associated with reselling the drugs. The officers also seized two cell phones from inside the motel room. In connection therewith, defendant was charged by indictment with, in relevant part, two counts of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree and aggravated harassment in the second degree. [FN1] When evidence was later discovered that defendant had sold drugs out of the motel, he was also charged in a separate indictment with two counts of criminal sale of a controlled substance in the third degree and the two indictments were consolidated for trial. After trial, defendant was convicted of both counts of criminal possession of a controlled substance in the third degree (counts 1 and 2), each count of criminal possession of a controlled substance in the fourth and seventh degrees (counts 3 and 4, respectively) and both counts of criminal sale of a controlled substance in the third degree (counts 5 and 6). Thereafter, County Court sentenced defendant to various concurrent and consecutive terms of incarceration, with the aggregate of the consecutive sentences amounting to a prison term of 32 years, to be followed by three years of postrelease supervision, and imposed a $5,000 fine upon him. Defendant appeals. We begin by addressing defendant's argument that County Court erred in denying his request to represent himself at trial. \"A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues\" ( People v McIntyre , 36 NY2d 10, 17 [1974]; see People [*2] v Atutis , 222 AD3d 1106 , 1106 [3d Dept 2023]; People v Curry , 152 AD3d 818 , 821 [3d Dept 2017], lv denied 30 NY3d 948 [2017]; People v Poulos , 144 AD3d 1389 , 1391 [3d Dept 2016]). At his arraignment in April 2014, defendant informed County Court that he \"was considering the possibility of going pro se.\" The court responded that such a move was typically \"a bad idea\" because counsel's education and experience \"can really be a great benefit for you.\" The court inquired into defendant's educational background and, after testing his understanding of the law, acknowledged that defendant's knowledge put him \"ahead of a lot of people.\" However, it noted that \"it would be unrealistic to think that [he had] the knowledge and experience [of] somebody who's gone through three years of law school plus been practicing law a number of years.\" Still, the court indicated that it would consider a future application to proceed pro se, before urging defendant \"to reconsider that idea. It's just a bad idea.\" Thereafter, by letters dated August 15, 2014 and September 22, 2014, defendant's counsel informed the court that defendant wanted to represent himself at trial. [FN2] Having received no response from the court, on September 25, 2014, defendant filed a motion requesting that the court allow him to proceed pro se. To illustrate his competence to proceed without the assistance of counsel, defendant prepared his own omnibus motion which, according to his counsel at the time, \"demonstrate[d] an understanding of the nature of the proceedings.\" Without conducting any inquiry to determine if defendant's waiver of counsel and request to represent himself was knowing and intelligent, the court, seemingly relying upon its determination in a prior unrelated criminal matter that defendant was incompetent to represent himself, summarily denied his request. [FN3] A court may not summarily deny a defendant's request to represent himself or herself, even if the court believes it to be in the defendant's best interest to be represented by counsel ( see People v Poulos , 144 AD3d at 1392). Once defendant made his request, which was unequivocal and timely, County Court was required to conduct a colloquy to determine whether he was making a voluntary and intelligent waiver of his right to counsel ( see People v Smith , 68 NY2d 737, 738 [1986], cert denied 479 US 953 [1986]). There is no merit to the People's argument that defendant forfeited his right to represent himself by engaging in disruptive behavior. To the contrary, aside from an isolated incident during the grand jury proceedings, the record does not reflect any disruptive behavior by defendant before the court denied his request to represent himself. Nor did the court make any explicit findings that defendant would not comply with the court's directives if he were allowed to represent himself. In any event, even if the court believed defendant's motion was \"a disingenuous attempt to subvert the overall purpose of the trial,\" it was nevertheless [*3] required \"to conduct a dispassionate inquiry into the pertinent factors\" ( People v McIntyre , 36 NY2d at 19), which it failed to do. Since defendant was improperly denied the right to proceed pro se, the judgment must be reversed and the matter remitted for a new trial ( see People v Poulos , 144 AD3d at 1392). Next, we address defendant's motion to suppress, as relevant to a new trial. Defendant contends that evidence seized from the motel room should have been suppressed because the warrant to arrest him was based on a charge that he had violated Penal Law § 240.30 (1) (aggravated harassment in the second degree), which statute was later held to be unconstitutionally vague ( see People v Golb , 23 NY3d 455 [2014], cert denied 574 US 1079 [2015]). However, \"[t]he subsequently determined invalidity of [a statute] on vagueness grounds does not undermine the validity of [an] arrest made for violation of that [statute], and the evidence discovered in the search of [defendant need not be] suppressed\" ( Michigan v DeFillippo , 443 US 31, 40 [1979]). Accordingly, County Court properly denied defendant's motion to suppress on the ground that his arrest was unlawful ( see People v Pantusco , 107 AD2d 854, 855-856 [3d Dept 1985]). Defendant also argues that the evidence seized from the motel room should have been suppressed because the People failed to show that his girlfriend, to whom the room was registered, consented to its search. Although there were some discrepancies in various witnesses' testimony, deferring to County Court's credibility determinations, we find no basis in the record to disturb the court's conclusion that the girlfriend voluntarily consented, both orally and in writing, to a search of the room ( see People v Crispell , 223 AD3d 941 , 942 [3d Dept 2024], lv denied 41 NY3d 964 [2024]; People v Brinkley , 174 AD3d 1159 , 1163-1164 [3d Dept 2019], lv denied 34 NY3d 979 [2019]; People v Miller , 159 AD3d 1053 , 1054 [3d Dept 2018]). We do agree with defendant, however, that County Court erred in denying his motion to suppress evidence obtained through a search of his cell phones, as the application for a warrant to search the phones failed to establish probable cause. A search warrant application must contain \"information sufficient to support a reasonable belief that . . . evidence of a crime may be found in a certain place\" ( People v Cruz , 221 AD3d 1423 , 1424 [4th Dept 2023] [internal quotation marks and citation omitted], lv denied 41 NY3d 1001 [2024]; see CPL 690.35 [3] [b]; People v Alexander , 207 AD3d 878 , 880 [3d Dept 2022], lv denied 39 NY3d 984 [2022]). The application \"may be based upon personal knowledge of the applicant or upon information and belief, provided that in the latter event the sources of such information and the grounds of such belief are stated\" (CPL 690.35 [3] [c]). \"A presumption of validity attaches to a search warrant signed by a magistrate, and a court's determination that there is a probable cause for a search warrant must [*4] be afforded great deference\" ( People v Montgomery , 229 AD3d 899 , 905 [3d Dept 2024] [internal quotation marks and citations omitted]; see People v Cruz , 221 AD3d at 1424-1425). On June 20, 2014, County Court issued a warrant to search the contents of the seized cell phones. The warrant was issued based on the affidavit of an investigator, Anthony Bruno, which recited, in relevant part, that the Warren County Sheriff's Department received a tip from a confidential informant that drugs were being sold out of the motel room where the phones were found; that, in addition to the phones, various quantities of heroin, crack cocaine, methadone, vegetation and drug paraphernalia were seized from the motel room; and that the quantity and appearance of the drugs suggested they were packaged and intended to be sold. Based on this information, Bruno believed the \"electronic or digital contents\" of the phones \"may\" contain information about the owner of the cell phones and evidence of the commission of drug-related crimes committed by the phones' owner. The cell phones were subsequently searched pursuant to the warrant. [FN4] In October 2014, defendant filed a motion to suppress the evidence obtained from that search, contending that Bruno's affidavit did not demonstrate probable cause to believe that evidence of a crime would be found within the phones. While that motion was pending, Bruno submitted a second search warrant application regarding the same phones. The only difference between the first application and the second was Bruno's addition of language indicating that, in his extensive law enforcement experience, \"cell phones are almost always used by the sellers of narcotics to facilitate them in their sales.\" A second search warrant was issued in October 2014, and the phones were searched again. The results of the second analysis of the cell phones were identical to the first, with the exception that the second analysis included the phone number associated with one of the phones, whereas the first analysis did not include the phone number. Defendant then filed a second motion to suppress, arguing that law enforcement's \"attempt to cure defects in the first warrant application brought to light by the defense's motion to dismiss\" constituted an improper \"[s]econd [b]ite at the [a]pple.\" Even so, defendant argued that the improper attempt to cure the deficiencies of the first warrant still failed as there remained \"insufficient [detail] to establish a nexus between [defendant's] alleged criminal activity and the phone[s].\" After a hearing, County Court denied \"[d]efendant's motion to suppress . . . in its entirety.\" While we defer to all reasonable inferences that the magistrate could have made in issuing the initial search warrant, we find the original affidavit did not establish the probable cause required to issue a search warrant for defendant's cell phones. As noted, the warrant was supported by Bruno's affidavit, which stated that he believed the phones \"may\" contain digital data, including call histories, that would evidence the commission of criminal possession of a controlled substance in the third degree. However, the statute requires that a statement of reasonable cause based upon information and belief must also state \"the sources of such information and the grounds of such belief\" (CPL 690.35 [3] [c]), which was lacking here. Stated differently, even where there is probable cause to suspect the defendant of a crime, law enforcement may not search his or her cell phone unless they have information demonstrating that evidence is likely to be found there; some link sufficient to connect the two must be provided. Our review of the affidavit of probable cause in this case reveals no such link. While Bruno recounted that there was a quantity of drugs found in the motel room, along with the two phones, he did not explain why the phones likely contained evidence of a crime. Although common sense and experience might suggest that cell phones found in the same room as a quantity of drugs could potentially contain evidence related to the sale of those drugs, \"common sense alone does not establish probable cause to search a person's cell phone\" ( People v Jemmott , 164 AD3d 953 , 954 [3d Dept 2018], lv denied 32 NY3d 1112 [2018]). The application's inadequacy is underscored by the subsequent application, submitted months later and shortly after defendant challenged the validity of the warrant. Notably, the only addition in the second application attempts to remedy this deficiency and the People concede that the second application was submitted in response to defendant's motion to suppress \"[i]n lieu of litigating the issue.\" In the second application, Bruno stated that his vast experience as a law enforcement officer who investigates drug-related crimes led him to believe that the phones would contain pertinent evidence because \"cell phones are almost always used by the sellers of narcotics to facilitate them in their sales.\" Although the addition of this contention arguably cured the deficiency in the initial application ( see People v Alexander , 207 AD3d at 880-881), \"obtaining a warrant to search [the phones] that had already been searched [cannot] cure the violation of . . . defendant's constitutional rights\" ( People v Perez , 88 AD3d 1016 , 1018 [2d Dept 2011]; see People v Hickey , 172 AD3d 745 , 747-748 [2d Dept 2019], lv denied 33 NY3d 1105 [2019]). Accordingly, having been obtained pursuant to an invalid search warrant, the evidence from the two recovered cell phones should have been suppressed ( see People v Williams , 37 NY2d 206, 208 [1975]; People v Jemmott , 164 AD3d at 953-954; People v Mullins , 137 AD2d 227, 231-232 [3d Dept 1988], lv denied 72 NY2d 922 [1988]). During the various pretrial hearings held in this case, the People explained that through the text messages found on defendant's phone that suggested he was selling drugs, they \"investigated the whereabouts of\" the individuals defendant [*5] was texting, \"reached out to th[ose] individuals\" and then \"filled in the gaps between [the] messages and what occurred.\" Further information about the discovery of evidence of the sales through the phone was discussed during the trial. Outside of the information uncovered through the data on the phone, the People had no independent basis for the sales charges that they brought against defendant. Accordingly, as the second indictment is, essentially, \"fruit of the poisonous tree,\" the charges in that indictment—counts 5 and 6 as put forth to the jury—must be dismissed ( People v Crispell , 223 AD3d at 945 [internal quotation marks and citations omitted]; compare People v Jordan , 154 AD3d 1176 , 1176-1177 [3d Dept 2017]). Lastly, we address defendant's argument that his convictions for criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree are against the weight of the evidence. [FN5] \"Such review entails weighing the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony while viewing the evidence in a neutral light and giving deference to the jury's credibility assessments\" ( People v Gibson , 121 AD3d 1416 , 1418 [3d Dept 2014], lv denied 24 NY3d 1119 [2015] [internal quotation marks and citations omitted]; see People v Danielson , 9 NY3d 342 , 348-349 [2007]; People v Bleakley , 69 NY2d 490, 495 [1987]). Inasmuch as a different verdict would not have been unreasonable, we evaluate whether each element of the crimes charged was proven beyond a reasonable doubt ( see People v Danielson , 9 NY3d at 348-349; People v Bleakley , 69 NY2d at 494-495). As relevant to counts 1 and 2, \"[a] person is guilty of criminal possession of a controlled substance in the third degree when he [or she] knowingly and unlawfully possesses . . . a narcotic drug with intent to sell it\" (Penal Law § 220.16 [1]). As to count 3, \"[a] person is guilty of criminal possession of a controlled substance in the fourth degree when he [or she] knowingly and unlawfully possesses . . . one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more\" (Penal Law § 220.09 [1]). \"Constructive possession may be established by circumstantial evidence and any conflict in the evidence regarding a defendant's dominion and control over the drugs in question creates issues of witness credibility, and the jury's determination in that regard must be accorded great deference\" ( People v Garcia-Toro , 155 AD3d 1086 , 1086-1087 [3d Dept 2017] [internal quotation marks, brackets, ellipsis and citations omitted], lv denied 30 NY3d 1115 [2018]). \"With respect to establishing a defendant's intent to sell drugs, the jury is allowed to infer, based on the amount of drugs at issue, that the defendant possessed them for the purpose [*6] of financial gain, rather than personal consumption\" ( People v Patterson , 199 AD3d 1072 , 1075 [3d Dept 2021] [internal quotation marks and citations omitted], lv denied 37 NY3d 1163 [2022]). Testimony at trial established that multiple law enforcement officers from the narcotics unit responded to the motel after receiving a tip that defendant was selling drugs out of room 118. After inquiring with the motel as to who was renting room 118, the officers learned that the room was rented by a female and that a male was staying with her. The officers proceeded to room 118, knocked, and the girlfriend answered the door. According to a Warren County Sheriff's Department investigator, he recognized defendant and asked him to exit the motel room. Defendant was then taken into custody on the outstanding warrant for his arrest. Although disputed by the girlfriend at trial, officers testified that she verbally consented to their search of the motel room. During their search, officers found a black plastic bag on a dresser and an orange knife with what appeared to be cocaine residue. Upon searching the black plastic bag, the officers found four bundles of heroin, some loose bags of heroin and several tie-offs containing crack cocaine. The heroin was packaged in blue tinted glassine bags. In addition to the black plastic bag, the officers located a black backpack which contained five additional bags of heroin and some empty glassine envelopes as well as a \"green tie-off rag,\" a digital scale and a plastic spoon. A hypodermic needle was also found inside a dresser drawer. Defendant's ID, along with his photograph, a medicine bottle of methadone with defendant's name on it and two cell phones were also recovered from the scene. A forensic scientist employed by the State Police testified that he analyzed the substances collected at the motel room. His analysis confirmed that the bags containing white material were cocaine with a total weight of more than an eighth of an ounce. Regarding the substance believed to be heroin at the motel room, the forensic scientist inventoried 53 blue glassine envelopes containing the powder suspected to be heroin as well as seven other glassine envelopes with residue. Testing revealed that the powder did contain heroin and after weighing, the forensic scientist determined that there was less than an eighth of an ounce of heroin. There were also 11 blue glassine envelopes recovered from inside the black backpack containing visible powder or residue, which the forensic scientist analyzed and determined was also heroin. A Warren County Sheriff's Department investigator testified that, based upon his training and experience, the glassine envelopes were typically used for packaging heroin for sale. The girlfriend testified, pursuant to a cooperation agreement with the People, that around January 18, 2014, she suggested that she and defendant travel to the Warren County area and do a \"drug flip\" to secure cash for defendant's anticipated [*7] needs for bail on an unrelated charge. She gave defendant approximately $800; he bought drugs and then they brought those drugs up to Warren County. The girlfriend was not with defendant when he purchased the drugs, but she \"got a couple glances of them\" when he was packaging them in his house the night that he bought them. When they arrived at the motel, the girlfriend paid for and reserved the room in her name because defendant \"didn't want to use his ID.\" She indicated that the plan was to then sell the drugs and return to the New York City area. Having never lived in the Warren County area herself, the girlfriend did not have any contacts or friends to whom she could make such sales. The girlfriend acknowledged that defendant was a heroin addict. Despite his addiction, she maintained that defendant was the one in constant possession of the drugs throughout the weekend because she \"trusted that he would do what he said he was going to do with them.\" However, on cross-examination, the girlfriend admitted that during a period where defendant was out of the motel room he texted her and instructed her that an individual would be coming by the motel room, she was to get a quantity of drugs from the bag inside the room and give it to this individual in exchange for $100. She secured the $100 in her own pocketbook following the transaction. She noted that during that period when defendant left to retrieve luggage from the Albany bus station, she was in possession of the drugs, which were left with her in the motel room. By two letters sent to defendant following his arrest, the girlfriend referred to defendant as her \"slave,\" told him that she \"own[ed]\" him and that she had \"strength and power to dictate and rule him.\" In his defense, defendant posited that it was the girlfriend who exercised \"dominion and control over\" the drugs in the black plastic bag found in the motel room. He testified that, prior to the police coming, the girlfriend kept the drugs in a locked box, suggesting that she was in fact in possession and had control of the drugs. He indicated that the girlfriend had a dominating personality in that she wanted to be in control, and she was a \"pathological liar.\" While defendant admitted that the heroin found in the black backpack was his, he maintained that it was for personal use and not \"getting ready to be packaged for some sort of sale.\" He emphasized that the different location of the drugs—i.e., in the plastic bag and the backpack—was evidence of different ownership. Defendant admitted that he \"demanded\" that the girlfriend give him bail money or he would tell her parents about her child. He testified that the girlfriend was able to obtain crack cocaine from her child's father, and that she indicated to defendant that they could sell that to get bail money for him. Defendant suggested to the girlfriend that people would not purchase the cocaine unless they could also purchase heroin, but he noted that this was a ploy to get heroin [*8] so he could get high himself when they got to Warren County. At that point, the girlfriend withdrew $500 or $600 to purchase the heroin. In this sense, defendant acknowledged that he was guilty of \"conspiracy to distribute narcotics,\" but that was not what he was charged with. Evaluating the evidence in a neutral light and according deference to the jury's credibility determinations, we find the jury's conclusion that defendant possessed the drugs to be supported by the record. Further, the quantity of heroin—over 50 bags—and crack cocaine—approximately 13 grams—found in the motel room also suggested that defendant's intent was to sell the drugs ( see People v Garcia-Toro , 155 AD3d at 1087). That the crack cocaine weighed greater than one-eighth of an ounce and that there was a scale located in the motel room—suggesting that defendant knew the weights of the various drugs—supports the guilty verdict for criminal possession of a controlled substance in the fourth degree ( see Penal Law § 220.09 [1]; People v Nelson , 156 AD3d 1112 , 1115-1116 [3d Dept 2017], lv denied 31 NY3d 1151 [2018]). Thus, we do not find defendant's convictions to be against the weight of the evidence. Since we are ordering a new trial, we find it unnecessary to address defendant's remaining arguments. Aarons, J.P., Lynch, Ceresia and McShan, JJ., concur. Ordered that the judgment is reversed, on the law, counts 5 and 6 are dismissed, and matter remitted to the County Court of Warren County for a new trial on the remaining counts. Footnotes Footnote 1: The aggravated harassment charge was the basis for defendant's outstanding arrest warrant and is not relevant to this appeal. Footnote 2: The People concede that defendant's August 15, 2014 request to proceed pro se was \"a timely and unequivocal assertion of [his] invocation of his right to\" represent himself and that such request was a knowing and voluntary attempt to waive his right to counsel. Footnote 3: County Court's determination in that matter was reversed on appeal ( People v Poulos , 144 AD3d at 1391-1392). Footnote 4: Data extracted from these phones revealed, among other things, several text messages that, according to the testimony of Bruno, contained language indicating that defendant used the cell phones to sell drugs. Footnote 5: Because we are ordering dismissal of counts 5 and 6 and defendant concedes that the verdict as to count 4 was not against the weight of the evidence, we conduct a weight of the evidence review as to counts 1, 2 and 3 only. "
},
{
"from": "gpt",
"value": "Defendant's right to self-representation was improperly denied. A court\ncannot deny a defendant's request to proceed pro se merely because the court thinks it is a bad idea. Once a defendant makes an unequivocal\nrequest, the court must engage in a colloquy with defendant to make a\ndetermination whether defendant is making a knowing and intelligent\nwaiver of his right to counsel."
}
]
|
2024.03765 | [
{
"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 Jimenez 2024 NY Slip Op 03765 [229 AD3d 568] July 10, 2024 Appellate Division, Second 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 Ricardo Jimenez, Appellant. Lipman & Booth, LLC, New York, NY (Christopher Booth of counsel), for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Virginia A. Marciano and Steven A. Bender of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Westchester County (David S. Zuckerman, J.), rendered November 29, 2021, convicting him of bribery in the second degree and rewarding official misconduct in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Following a jury trial, the defendant was convicted of bribery in the second degree and rewarding official misconduct in the second degree. The defendant's challenge to the legal sufficiency of the evidence supporting his convictions is unpreserved for appellate review ( see CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621 [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, 410 [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 County Court providently exercised its discretion in denying the defendant's applications for a mistrial based on the court's COVID-19 safety protocols. Contrary to the defendant's contention, the court's COVID-19 safety protocols did not deprive him of the ability to meaningfully participate in jury selection or violate his right to due process ( see People v Ramirez , 41 NY3d 406 , 411-412 [2024]). The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit. Barros, J.P., Wooten, Warhit and Ventura, JJ., concur."
},
{
"from": "gpt",
"value": "COVID-conscious protocols did not deprive defendant of the ability to\nmeaningfully participate in jury selection or violate his right to due process"
}
]
|
2024.03761 | [
{
"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 Bradshaw 2024 NY Slip Op 03761 [229 AD3d 563] July 10, 2024 Appellate Division, Second 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 Glenn Bradshaw, Appellant. Thomas R. Villecco, Jericho, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Edward D. Saslaw of counsel), for respondent. Appeals by the defendant from (1) a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered January 20, 2022, convicting him of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree (three counts), under indictment No. 69/20, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered January 20, 2022, revoking a sentence of probation previously imposed by the same court under indictment No. 193/18, upon a finding that he had violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a controlled substance in the third degree. Ordered that the judgment and the amended judgment are affirmed. The defendant's trial took place at a time when COVID-19-related protocols required individuals in the courtroom, including the defendant, to wear a face mask. The defendant contends that the prosecutor violated his right to a fair trial when the prosecutor told the jury, during summation, that it may send a note asking the County Court to direct the defendant to remove his mask to show his face. However, as the defendant did not object to the summation remark at issue or make a timely motion for a mistrial on the specific grounds now asserted on appeal, his contention that the prosecutor's summation remark deprived him of a fair trial is unpreserved for appellate review ( see CPL 470.05 [2]; People v Ambers , 115 AD3d 671 , 672 [2014]). To the extent that the defendant's claim that he did raise an objection to the summation remark at issue is based on matter dehors the record, it is not reviewable on direct appeal ( see People v Boyce , 118 AD3d 1016 , 1017 [2014]). In any event, the prosecutor's summation remark was responsive to defense counsel's summation comments ( see People v Halm , 81 NY2d 819, 821 [1993]; People v Komynar , 210 AD3d 698 , 700 [2022]). To the extent that the prosecutor's remark was improper, it was not so flagrant or pervasive as to have deprived the defendant of a fair trial ( see People v Komynar , 210 AD3d at 700). Contrary to the defendant's contention, the record does not reflect that the County Court exercised any retaliation or vindictiveness against the defendant for electing to proceed to trial under indictment No. 69/20 ( see People v Garcia , 222 AD3d 659 , 660 [2023]; People v Hunter , 151 AD3d 1077 [2017]). Moreover, the sentences imposed under indictment Nos. 193/18 and 69/20 were not [*2] excessive ( see People v Suitte , 90 AD2d 80 [1982]). Brathwaite Nelson, J.P., Maltese, Wan and Landicino, JJ., concur."
},
{
"from": "gpt",
"value": "Rejects argument that prosecutor violated defendant's right to a fair trial\nwhen the prosecutor told the jury, during summation, that it could send a\nnote asking the County Court to direct the defendant to remove his mask to\nshow his face. Prosecutor's summation remark was responsive to defense\ncounsel's summation comments."
}
]
|
2024.03846 | [
{
"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 Yeager 2024 NY Slip Op 03846 [229 AD3d 942] July 18, 2024 Appellate Division, Third 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 Jonah P. Yeager, Appellant. Dennis J. Lamb, Troy, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent. Appeal from a judgment of the County Court of Clinton County (Timothy J. Lawliss, J.), rendered June 2, 2021, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree. Defendant waived indictment and agreed to plead guilty to criminal possession of a controlled substance in the third degree in satisfaction of a four-count superior court information. Under the terms of the plea agreement, defendant was to be sentenced either to 364 days in jail or to six months in jail and five years of probation, and he was required to waive the right to appeal. During the plea colloquy, County Court admonished defendant that it would not be bound by the agreed-upon sentencing commitment if defendant violated local, state or federal law between the date of the plea and the date of sentencing, and that the maximum sentence he could then receive as the result of such a violation would be nine years in prison followed by two years of postrelease supervision. At sentencing, County Court noted that defendant stated during his interview with the Probation Department as part of its presentence investigation that he had been using cocaine daily up until a couple of days before the interview. For failing to comply with the conditions of the plea agreement by violating state law, County Court sentenced defendant to an enhanced prison term of three years followed by two years of postrelease supervision. Defendant appeals, and we affirm. Initially, we are unpersuaded by defendant's contention that he did not validly waive his right to appeal because his attorney did not sufficiently review the written waiver with him. The record reveals that, prior to the plea proceeding, defense counsel had gone over all of the contents of the appeal waiver with defendant on the telephone. Further, while defendant and his attorney were not in the same physical location during the plea hearing given that it was conducted virtually as a result of the COVID-19 pandemic, defendant was provided a copy of the written appeal waiver, read it in its entirety, confirmed that he fully understood it and indicated that he had no questions about it either for his attorney or the court. Defendant then freely signed the written waiver of appeal. Under these circumstances, and noting that \" 'there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights' \" ( People v Smith , 210 AD3d 1207 , 1208 [3d Dept 2022], quoting People v Johnson , 14 NY3d 483 , 486 [2010]; see People v Daniels , 193 AD3d 1179 , 1179-1180 [3d Dept 2021]), we find that defendant's argument is without merit. Given the valid appeal waiver, and noting that County Court advised defendant of the consequences of violating the law prior to sentencing, defendant's challenge to the postrelease supervision component of the enhanced sentence as unduly harsh and severe is precluded ( see People v Trent , 206 AD3d 1355 , 1356 [3d Dept 2022]; People [*2] v Wilson , 194 AD3d 1195 , 1196 [3d Dept 2021]). In any event, we perceive no basis to disturb that aspect of the sentence ( see People v Buchas , 226 AD3d 1217 , 1218 [3d Dept 2024]). Aarons, J.P., Lynch, Ceresia, McShan and Mackey, JJ., concur. Ordered that the judgment is affirmed."
},
{
"from": "gpt",
"value": "Court\nupheld validity of plea and waiver of appeal. Defendant and his attorney\nwere not in the same physical location during the plea hearing, conducted\nvirtually because of the COVID-19 pandemic. Defendant was provided a\ncopy of the written appeal waiver, read it in its entirety, confirmed that he\nfully understood it and indicated that he had no questions about it either\nfor his attorney or the court. Defendant then freely signed the written\nwaiver of appeal."
}
]
|
2024.05817 | [
{
"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 Castillo 2024 NY Slip Op 05817 [42 NY3d 628] 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, February 12, 2025 [*1] The People of the State of New York, Respondent, v Jairo Castillo, Appellant. Argued October 17, 2024; decided November 21, 2024 People v Castillo , 210 AD3d 414 , reversed. {**42 NY3d at 630} OPINION OF THE COURT Garcia, J. The shooting at issue here occurred during a dispute over a drug transaction between the owner of a barbershop in the Bronx and the victim. After the owner and the victim had a series of confrontations in and around the shop, including a fistfight and threats of violence by the victim against the owner and his family earlier that same day, the victim returned to the shop. The owner called defendant, a friend, and shortly thereafter when defendant arrived at the scene, the victim confronted him with a razor blade, and defendant shot and killed him. Defendant was convicted of second-degree murder and second-degree criminal weapon possession. On appeal, he argues that his convictions must be reversed because of the trial court's failure to instruct the jury on the defense of justification (Penal Law § 35.15). We agree that the failure to charge the jury on that defense as to the murder count was error and, because that failure may have affected the jury's verdict on the possession count, both convictions must be reversed. During defendant's trial, after hearing testimony from, among others, an eyewitness to the shooting and the medical examiner, the trial court declined defendant's request that the jury be charged with the justification defense. The trial court concluded that justification is not \"an appropriate charge,\" noting that she had \"reviewed the testimony, including the photographs, including the razor blade and reviewing the relative sizes and ages, descriptions of the two parties involved.\" The jury convicted on both counts. The Appellate Division affirmed, holding because [*2] \"defendant stepped back, and the victim did not cut him,\" and that, even if the two shots to the victim's front were justified, \"there was no reasonable view of the evidence . . . that defendant . . . was justified in firing four additional shots into the victim's back\" (210 AD3d 414, 415 [1st Dept 2022]). A Judge of this Court granted defendant leave to appeal (39 NY3d 1109 [2023]), and we now reverse. [1] {**42 NY3d at 631} The defense of justification provides that a person may use physical force to defend himself against an assailant's \"imminent use of unlawful physical force,\" but does not authorize the use of \"deadly physical force . . . unless . . . [t]he [person] reasonably believes that [the assailant] is using or about to use deadly physical force\" (Penal Law § 35.15 [1], [2] [a]). When considering a request for a justification charge, courts examine the evidence in the light most favorable to the defendant, and must provide the instruction if there is any reasonable view of the evidence that defendant was justified in his actions ( see People v Heiserman , 39 NY3d 988 , 990 [2022]). Justification has both a subjective requirement, that \"defendant . . . actually believed . . . he [was] threatened with the imminent use of deadly physical force,\" and an objective requirement, that defendant's \"reactions were . . . those of a reasonable man acting in self-defense\" ( People v Collice , 41 NY2d 906, 907 [1977]). The defense does not automatically apply throughout the entirety of an encounter—a defendant who may be justified in using deadly physical force at the start of an encounter loses the right to use such force \" 'at the point he can no longer reasonably believe the assailant still poses a threat to him' \" ( People v Williams , 35 NY3d 24 , 45 [2020], quoting People v Del-Debbio , 244 AD2d 195, 195 [1st Dept 1997]). Applying this standard to the evidence here, we conclude defendant was entitled to a justification instruction on the second-degree murder charge. At trial, an eyewitness testified that the victim confronted defendant in the barbershop's doorway, told him he could not leave, and held a razor blade against defendant's face, threatening to cut him from ear to ear. Defendant then took a step back, drew his gun, and shot the victim six times. The eyewitness testified that defendant and the victim were facing each other when defendant first fired, but that the victim was facing away from defendant as he continued to fire. Although his body turned, the victim did not move from where he was standing. The altercation lasted approximately 30 seconds, and the shooting itself only approximately five seconds from the first to the last shot. The medical examiner testified that, because the victim's wounds lacked distinctive markings, or \"stippling,\" the two men must have been at least two feet apart. According to the medical examiner, the autopsy showed that one bullet entered the victim's side, while another entered his arm, and four entered his back. The medical examiner also testified that three {**42 NY3d at 632} of the six shots would have been fatal: the one to the victim's side, and two to the victim's back. When viewed under the appropriate standard, there is a reasonable view of this evidence that defendant was justified in his actions ( see Heiserman , 39 NY3d at 990). It is undisputed that the victim was the initial aggressor and, as the People concede, defendant faced an imminent threat of deadly force at the time the victim held the blade to his face. Despite the Appellate Division's reasoning to the contrary, that defendant stepped back does not mean he could no longer have reasonably believed the victim still posed a threat to him. Given the rapid unfolding of events—there was testimony that the entire confrontation was over in 30 seconds—jurors could also conclude that the shots to the victim's back were justified; that is, that defendant \" 'reasonably believe[d] the assailant still pose[d] a threat to him' \" ( Williams , 35 NY3d at 45, quoting Del-Debbio , 244 AD2d at 195). While the victim appears to have turned his body at some point, he remained standing close to defendant, and under the circumstances it would not be unreasonable for defendant to believe the victim continued to pose a threat. In other words, a jury could conclude that defendant still subjectively feared an imminent deadly threat, and that such a fear and defendant's response were reasonable ( see Heiserman , 39 NY3d at 990). Finally, on this record, there is a reasonable view of the evidence that defendant could not safely retreat into the back of the barbershop at the time he used deadly physical force ( see People v Sanchez , 31 NY3d 949 , 950 [2018]). Accordingly, the failure to provide the jury with a justification charge was error, and defendant's murder conviction must be reversed. [FN1] The People are correct that the trial court did not err in failing to give a justification charge on the possession count. Justification is not available as a defense to a possessory offense, including possession of a weapon with intent to use it unlawfully against another person ( see People v Pons , 68 NY2d 264, 265 [1986]; People v Almodovar , 62 NY2d 126, 129-131 [1984]). That does not end our inquiry, however, as we must examine whether the failure to provide the instruction on the murder count affected the jury's verdict on the possession count. [2] {**42 NY3d at 633} Defendant was charged with criminal possession of a weapon in the second degree, requiring the People to prove that he possessed the gun with the intent to use it unlawfully against another person ( see Penal Law § 265.03 [1]). The model Criminal Jury Instruction provides that \"a person acts with intent to use a loaded firearm unlawfully . . . when his . . . conscious . . . purpose is to use that loaded firearm unlawfully against another, and, that intent need only exist at the very moment that a person engages in an unlawful use of the firearm against another\" (CJI2d[NY] Penal Law § 265.03 [1] [b] [crime committed on or after Nov. 1, 1998], https://www.nycourts.gov/judges/cji/2-PenalLaw/265/265-03(1)(b).pdf [emphasis added]). [FN2] But if the jury in this case was properly instructed on justification, it might have concluded that defendant acted lawfully when he shot and killed the victim in self-defense. If so, then the jury might have also concluded that defendant lacked the requisite intent (to use unlawfully) for the possession charge ( see Jackson v Edwards , 404 F3d 612, 627 [2d Cir 2005] [in deciding a habeas petition, the court held that \"if a properly instructed jury were to have concluded that (the defendant) was not guilty of any homicide offense, then it might have also concluded that he lacked the requisite intent to be guilty of the weapons charge\"]; see also Davis v Strack , 270 F3d 111, 134-135 [2d Cir 2001]). In other words, it is possible the jury here relied solely on evidence of the potentially justified shooting in finding defendant guilty of possession of the weapon with the intent to use it unlawfully. To be clear, a jury finding of justification as to the use of a firearm does not preclude that jury from finding that the defendant nevertheless possessed the weapon with intent to use it unlawfully ( see People v Muhammad , 17 NY3d 532 , 545 [2011] [\"(T)he intent element is satisfied if the defendant intended to use the weapon unlawfully against another at any time during the period of possession\" (emphasis added)]). But with respect to the possessory offense, the jury must be instructed that, while justification is not a defense to that crime, in the event the jury finds that the shooting was justified, that lawful use of the weapon cannot be considered as {**42 NY3d at 634} proof of the unlawful intent element of the possession charge. For example, the jury's intent determination may rest on defendant's conduct \"during the continuum of time that he possessed it prior to the shooting\" ( Pons , 68 NY2d at 268). Accordingly, the order of the Appellate Division should be reversed and a new trial ordered. Chief Judge Wilson and Judges Rivera, Singas, Cannataro, Troutman and Halligan concur. Order reversed and a new trial ordered. Footnotes Footnote 1: We of course do not decide whether, based on the evidence introduced in any retrial, the People would be entitled to a charge that each shot must be justified. Footnote 2: Here, the jury appears to have been instructed that unlawful \"intent only exists at the very moment that a person engages in the unlawful use of the firearm against another\" (emphasis added). That instruction would serve only to aggravate the problem described above. For simplicity, the writing assumes the standard instruction was given. "
},
{
"from": "gpt",
"value": "Justification is not available as a defense to a possessory offense, including\npossession of a weapon with intent to use it unlawfully against another\nperson, but absence of justification charge may have had adverse impact\non jury's consideration of CPW count. In a case such as this,\n\"the jury must\nbe instructed that, while justification is not a defense to that crime, in the\nevent the jury finds that the shooting was justified, that lawful use of the\nweapon cannot be considered as proof of the unlawful intent element of\nthe possession charge.\n\""
}
]
|
2024.03995 | [
{
"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 Campbell 2024 NY Slip Op 03995 [229 AD3d 1296] July 26, 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 Laryn Campbell, Appellant. Sarah S. Holt, Conflict Defender, Rochester (Fabienne N. Santacroce of counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Ryan P. Ashe of counsel), for respondent. Appeal from a judgment of the Supreme Court, Monroe County (Charles A. Schiano, Jr., J.), rendered May 13, 2019. The judgment convicted defendant upon a nonjury verdict of criminal possession of a controlled substance in the third degree and criminally using drug paraphernalia in the second degree (two counts). It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts 3 through 5 of the indictment. Memorandum: On appeal from a judgment convicting him after a nonjury trial of one count of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and two counts of criminally using drug paraphernalia in the second degree (§ 220.50 [2], [3]), defendant contends that the evidence is legally insufficient to establish that he constructively possessed the drugs and drug paraphernalia, and that the evidence is insufficient to establish his liability as an accomplice. Because defendant's motion for a trial order of dismissal was not \" 'specifically directed' at th[at] alleged error,\" he failed to preserve for our review his contention that there is insufficient evidence of his liability as an accomplice ( People v Gray , 86 NY2d 10, 19 [1995]; see People v Bell , 198 AD3d 1305 , 1306 [4th Dept 2021], lv denied 37 NY3d 1144 [2021]). With respect to the preserved contention, viewing the evidence in the light most favorable to the People ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we reject defendant's contention that there is insufficient evidence of his constructive possession of the drugs and drug paraphernalia ( see People v Mattison , 41 AD3d 1224 , 1225 [4th Dept 2007], lv denied 9 NY3d 924 [2007]). Among other things, defendant told a police officer that he rented a room inside the home where the drugs and drug paraphernalia were found, and identification cards with defendant's name were found in one of the bedrooms therein ( see generally People v Slade , 133 AD3d 1203 , 1205 [4th Dept 2015], lv denied 26 NY3d 1150 [2016]; People v Holley , 67 AD3d 1438 , 1439 [4th Dept 2009], lv denied 14 NY3d 801 [2010]). The drugs and drug paraphernalia were found in common areas of the apartment, i.e., the living room and kitchen, and mail addressed to defendant at the home was found on a table in the kitchen ( see generally People v Tucker , 173 AD3d 1817 , 1818 [4th Dept 2019], lv denied 34 NY3d 938 [2019]; People v Davis , 101 AD3d 1778 , 1779-1780 [4th Dept 2012], lv denied 20 NY3d 1060 [2013]). The testimony at trial that the other bedroom in the home contained no furniture supports the inference that defendant's room was the only occupied bedroom ( see generally People v Banks , 14 AD3d 726 , 727-728 [3d Dept 2005], lv denied 4 NY3d 851 [2005]). \"Viewing the evidence in light of the elements of the crime[s] in this nonjury trial\" ( People v Ghent , 132 AD3d 1275 , 1275 [4th Dept 2015], lv denied 26 NY3d 1145 [2016]; see Danielson , 9 NY3d at 349), we likewise reject defendant's contention that the weight of the evidence did not support the verdict with respect to his constructive possession of the drugs and drug paraphernalia ( see Mattison , 41 AD3d at 1225), and his liability as an accessory ( see generally People v Brewer , 196 AD3d 1172 , 1174 [4th Dept 2021], lv denied 37 NY3d 1095 [*2] [2021], cert denied 596 US &mdash, 142 S Ct 1684 [2022]). We agree with defendant, however, that Supreme Court erred in applying the \"room\" or \"drug factory\" presumption pursuant to Penal Law § 220.25 (2) ( see People v Kims , 24 NY3d 422 , 425 [2014]). As relevant here, section 220.25 (2) provides that \"[t]he presence of a narcotic drug . . . in open view in a room . . . under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found.\" \"Penal statutes 'must be construed according to the fair import of their terms to promote justice and effect the objects of the law' \" ( People v Fraser , 264 AD2d 105, 110 [4th Dept 2000], affd 96 NY2d 318 [2001], cert denied 533 US 951 [2001], quoting § 5.00; see People v Miller , 70 NY2d 903, 906 [1987]). The drug factory presumption is \"intended to allow police in the field to identify potentially culpable individuals involved in a drug business, under circumstances that demonstrate those individuals' participation in a drug operation\" ( Kims , 24 NY3d at 432-433). According to its drafters, the presumption is \"designed to remedy that situation wherein police execute a search warrant on a premises suspected of being a 'drug factory,' only to find dangerous drugs and/or drug paraphernalia scattered about the room. The occupants of such 'factories,' who moments before were diluting or packaging the drugs, usually proclaim their innocence and disclaim ownership of, or any connection with, the materials spread before them. Police, under such circumstances, are often uncertain as to whom to arrest. In addition, with the present burden of proof of knowing possession of dangerous drugs on the [P]eople, successful prosecution of persons other than the owner or lessee of such premises is extremely rare\" (Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044 at 4). The legislative history includes the further explanation that the phrase \"close proximity\" within the statute is \"intended to include persons who might, upon the sudden appearance of the police, hide in closets, bathrooms or other convenient recesses\" (Letter from St Commn of Investigation, Dec. 1, 1971, Bill Jacket, L 1971, ch 1044 at 7; see Kims , 24 NY3d at 433). In light of the statute's legislative purpose, the phrase \"close proximity\" in Penal Law § 220.25 (2) means \"when the defendant is sufficiently near the drugs so as to evince defendant's participation in an apparent drug sales operation, thus supporting a presumption of defendant's knowing possession\" ( Kims , 24 NY3d at 433). \"[T]he proximity determination requires careful consideration of the underlying facts related to the defendant's location on the premises\" ( id . at 434). Thus, a defendant need not be apprehended within the same room as the drugs in order to satisfy the element of \"close proximity\" ( see People v Hogan , 118 AD3d 1263 , 1264 [4th Dept 2014], affd 26 NY3d 779 [2016]), and the presumption applies to a defendant caught while trying to flee the premises upon the sudden entry by police ( see Kims , 24 NY3d at 435). Here, the drugs were found in a room on the ground floor, and the police did not find defendant in the room with the drugs or in flight therefrom. Officers first observed defendant upstairs on the second floor, \"walking from [the observing officer's] left to [his] right.\" The officers' observation is consistent with defendant walking out of his bedroom, which was, as explained at trial, \"up the stairs and kind of off to the left\" from where the officers were standing. Officers also testified at trial that defendant was wearing only underwear when he was first encountered, and that defendant's clothing was discovered inside his bedroom. The \"underlying facts related to . . . defendant's location on the premises\" ( id. at 434) reflect that defendant was not apprehended in close proximity to the drugs as contemplated by the drug factory presumption, i.e., he was not \"sufficiently near the drugs so as to evince defendant's participation in an apparent drug sales operation, thus supporting a presumption of defendant's knowing possession\" ( id . at 433). Defendant was not apprehended in the room with the drugs, he was not apprehended fleeing from that room, and he was not apprehended within or outside of the home while attempting to hide from police. Thus, he was not apprehended under circumstances suggesting that he had, just \"moments before,\" been engaged in drug distillation or packaging (Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044 at 4). We therefore conclude that the court erred in ruling that the drug factory presumption applied to the facts of this case. Although the drug factory presumption was applied directly to only count 3, which arose from the alleged possession of cocaine, we further conclude that the [*3] erroneous application of the presumption requires reversal of the judgment and a new trial on each of the three counts upon which defendant was convicted. Indeed, in their respondent's brief in this appeal, the People rely, in part, on the drug factory presumption when addressing defendant's contentions regarding the sufficiency and weight of the evidence with respect to all three counts, and correctly contend that the presumption, if properly applied to the cocaine, would have allowed the court to \"infer that, if the drugs to which the statutory presumption applied were part of the drug factory's supply, all the contraband found must have been controlled by the factory's operatives\" ( People v Bundy , 90 NY2d 918, 920 [1997]). In light of our determination, we do not address defendant's alternative contention that the court erred in denying defendant's request for a circumstantial evidence charge. Present—Lindley, J.P., Montour, Ogden, Keane and Hannah, JJ."
},
{
"from": "gpt",
"value": "Court should not have given the drug factory presumption instruction.\nDefendant was found on a different floor than the drugs seized, and the\nproof failed to establish that he was either hiding or had fled the area\nwhere the drugs were recovered. Reversed because \"close proximity\"\nphrase in PL 220.25(2) not met because defendant not apprehended in\nclose proximity to drugs as contemplated by drug factory presumption."
}
]
|
2024.05160 | [
{
"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 Alexander 2024 NY Slip Op 05160 [231 AD3d 1310] 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 Charles A. Alexander, Appellant. John A. Cirando, Syracuse, for appellant. Mary E. Saitta, Special Prosecutor, Binghamton, for respondent. Pritzker, J. Appeal from a judgment of the County Court of Broome County (Kevin P. Dooley, J.), rendered October 26, 2021, upon a verdict convicting defendant of the crime of burglary in the third degree. Defendant was convicted, after a jury trial, of one count of burglary in the third degree stemming from an incident wherein he unlawfully entered an apartment building in the City of Binghamton, Broome County with the intent to commit a larceny. County Court sentenced defendant, as a second felony offender, to a prison term of 3 1/2 to 7 years. Defendant appeals. Defendant argues that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to provide sufficient evidence to identify defendant beyond a reasonable doubt. As is relevant here, \"[a] person is guilty of burglary in the third degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein\" (Penal Law § 140.20). \"[A]s an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime\" ( People v Shabazz , 211 AD3d 1093 , 1095 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 NY3d 1113 [2023]). The victim testified that on February 17, 2021, she received notifications that three packages had been delivered to her apartment. However, when she returned home to the apartment building that evening around 7:45 p.m., her packages were missing from the lobby. She messaged the building manager to inform him of this. The building manager testified that the main entrance to the building is the front door which features a \"paddle latch\" lock that requires a metal key to unlock it. After he had received an email from the victim about her missing packages, he went to the building to check to see if the front door was still working and review the security footage. In reviewing the footage, [FN1] he observed that between 6:30 p.m. and 7:00 p.m., a male individual entered the front door, rummaged through the packages stacked inside the foyer and put some packages in his backpack. The building manager also observed that the individual used a knife to break the latch on the door to let himself in. He could not identify the individual who took the packages but was able to determine that the individual did not reside at the apartment building. An officer with the Binghamton Police Department responded to the scene soon after and observed that the front door locking mechanism, which required a key, was not properly functioning at the time because a screw had been removed or damaged. She also observed scratches on the lock. Jonathan Kellar, a police officer with the Binghamton Police Department, who was familiar with defendant, testified that he reviewed the security footage from the apartment building and recognized defendant, who has a \"strong jawline,\" as the individual in [*2] the video. Kellar also testified that he \"could see [defendant's] face in this surveillance, also has the same characteristics as far as height and weight, so [the officer] knew for a hundred percent fact that it was [defendant].\" A few weeks later, while sitting in his patrol car, Kellar observed defendant walking down the street. Kellar reviewed the security footage again and observed that defendant was \"wearing a black leather jacket, gray hooded sweatshirt underneath, and a black baseball hat, like a flat brim baseball hat with a yellow circular sticker on the top of the brim,\" which matched the clothes that the individual was wearing in the security footage. During a subsequent encounter with defendant, Kellar located a pocketknife in defendant's pants pocket. [FN2] \"Based on the foregoing, when construing the evidence in the light most favorable to the People as we must, a rational person could conclude that the [perpetrator's] identity was sufficiently proven to be defendant\" ( People v Slivienski , 204 AD3d 1228 , 1234 [3d Dept 2022] [citations omitted], lv denied 38 NY3d 1136 [2022]; accord People v Montgomery , 229 AD3d 899 , 903 [3d Dept 2024]; see People v Brown , 145 AD3d 1549 , 1550 [4th Dept 2016], lv denied 29 NY3d 947 [2017]; People v Williams , 46 AD3d 1024 , 1026 [3d Dept 2007]). Additionally, \"[d]efendant's intent to commit a crime when he entered the building could also readily be inferred by the circumstances of his entry and his actions once inside\" ( People v Thomas , 203 AD3d 634 , 635 [1st Dept 2022] [citation omitted], lv denied 38 NY3d 1136 [2022]; see People v Oliveras , 203 AD3d 1233 , 1237-1238 [3d Dept 2022], lv denied 38 NY3d 1073 [2022]). \"As to the weight of the evidence, although a different verdict would not have been unreasonable, when viewing all of the evidence in a neutral light and deferring to the jury's credibility determinations, we find that the weight of the credible evidence supports the conclusion that defendant was the [perpetrator]\" ( People v Slivienski , 204 AD3d at 1235 [citations omitted]; see People v Kilgore , 218 AD3d 1054 , 1056 [3d Dept 2023], lv denied 40 NY3d 1081 [2023]; People v Hines , 214 AD3d 1117 , 1119 [3d Dept 2023], lv denied 39 NY3d 1155 [2023]). Defendant also argues that County Court erred in declining to give a cross-racial identification jury instruction based upon Kellar's identification testimony as requested. We agree. As held by the Court of Appeals in People v Boone (30 NY3d 521 [2017]), \"when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification\" ( id. at 526 [emphasis added]; see People v Watkins , — NY3d &mdash, &mdash, 2024 NY Slip Op 02842, *4-5 [2024]). Here, at the close of proof, defendant requested that the jury be given a cross-racial identification instruction pursuant to Boone . County Court denied his request noting, among other things, that in [*3] the present case, the identifying witness, Kellar, knew defendant. County Court, however, misinterpreted the Boone standard and erred in denying defendant's request for a cross-racial identification jury instruction upon defendant's request for same (30 NY3d at 535; see People v Watkins , — NY3d at &mdash, 2024 NY Slip Op 02842, *4-5; People v Boyd , 184 AD3d 1151 , 1153-1154 [4th Dept 2020]; People v Jiggetts , 168 AD3d 507 , 508 [1st Dept 2019], lv denied 33 NY3d 977 [2019]; People v Bradley , 160 AD3d 760 , 761-762 [2d Dept 2018], lv denied 31 NY3d 1115 [2018]; compare People v Bailey , 201 AD3d 601 , 602 [1st Dept 2022], lv denied 38 NY3d 1069 [2022]). We do not find the error to be harmless. \"[U]nless the proof of . . . defendant's guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error\" ( People v Crimmins , 36 NY2d 230, 241 [1975]; see People v Mosley , 41 NY3d 640 , 652-653 [2024]; People v Hansel , 200 AD3d 1327 , 1331 [3d Dept 2021], lv denied 38 NY3d 927 [2022]). Here, without Kellar's identification testimony, the jury would have been tasked with identifying defendant from fleeting glances of his face, or at least the portion of his face able to be seen under his baseball hat, in the surveillance video. In fact, as conceded by the People at oral argument, it was because defendant had \"disquised himself in a way\" and was not looking at the camera that the jury may have needed some assistance in identifying defendant and thus they sought to admit Kellar's identification testimony. Although the People put in evidence that when defendant was arrested, weeks later, he was wearing similar clothing and in possession of a similar knife, we find that the identity evidence was not overwhelming ( compare People v Boyd , 184 AD3d at 1153-1154; People v Jiggetts , 168 AD3d at 508; People v Bradley , 160 AD3d at 762). As such, \"the error thus cannot be deemed harmless and requires reversal for a new trial\" ( People v Mosley , 41 NY3d at 653; see also People v Crimmins , 36 NY2d at 241). In light of this determination, defendant's remaining argument is rendered academic. Egan Jr., J.P., Lynch, McShan and Powers, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Broome County for a new trial. Footnotes Footnote 1: The security footage was admitted into evidence. Footnote 2: The black hat, pocketknife, gray hoodie and black leather jacket recovered from defendant were entered into evidence as People's exhibits. "
},
{
"from": "gpt",
"value": "A\npolice officer knew the defendant who was pictured on security camera\nvideo. Where the defendant and identification witness appear to be from\ndifferent races, pursuant to People v. Boone, 30 NY3d 521 (2017),\ndefendant was entitled, upon request, to a cross-racial identification\ncharge. Even though the identification witness knew the defendant, it was\nerror to deny the requested charge, and a new trial was ordered."
}
]
|
2024.04285 | [
{
"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 Wilson 2024 NY Slip Op 04285 [230 AD3d 448] August 22, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 2, 2024 [*1] The People of the State of New York, Respondent, v Yuri Wilson, Appellant. Caprice R. Jenerson, Office of Appellate Defender, New York (Margaret E. Knight of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Sarah Lubin of counsel), for respondent. Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered March 4, 2022, convicting defendant, after a jury trial, of attempted assault in the first degree and assault in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 12 years, unanimously reversed, on the law, and the matter remanded for a new trial. Coworkers Quintero, Rahman, and Donado were walking along Broadway between West 32nd and West 33rd Street in Manhattan at approximately 8:00 p.m. on November 20, 2020. Rahman exchanged words with another person, Diallo, about a marijuana purchase that he had just made from Diallo. Surveillance video captured the conversation and the beginning of the physical altercation. As they argued, Diallo started punching Rahman, who fought back. Defendant, and another person, Traore, ran up from behind Rahman and began punching Rahman repeatedly around the head. Quintero, the victim, became involved in the melee when he tried to pull Rahman away. Rahman, who was the only eyewitness to testify at trial, described the attack as the surveillance video was played to the jury. Rahman described witnessing defendant throw several \"normal\" punches and then make a motion with his arm toward Quintero in which defendant's \"hand was like kind of like come straight from behind not like just punch.\" He described this motion as \"like trying to pull something out, not like a punch, you know.\" Although Rahman testified that he never saw a weapon, he heard Quintero respire as if he was physically hurt and explained to the jury, \"[t]hat's where [Quintero] got stabbed.\" The video, which is grainy, shows what the People described as a long, thin, dark-colored object in defendant's hand and what the defense described as a shadow. Rahman also testified about what happened after the fight moved outside of the view of the surveillance camera. Defendant and Traore jumped on top of Quintero and continued to punch him. Diallo was no longer involved, but he was standing nearby. Rahman was struck in the head with a cell phone and may have lost consciousness for 40-50 seconds. After the fight ended, Rahman found Traore's cracked cell phone. Surveillance video captured defendant and Traore leaving the scene together. Traore grabbed defendant's bag on the way out. Rahman testified that after the fight ended, he and Quintero walked toward the subway. At that point, he saw blood on his shoes and realized that Quintero was bleeding. Quintero removed his jacket, revealing a \"dime size\" laceration that was bleeding heavily on the left side of his chest, and then he collapsed to the ground. Although Quintero did not testify, his statements to an investigating officer were admitted at trial. Quintero did not know who stabbed him. He initially thought that he had been punched in the chest and did not realize that he was stabbed until after the fight ended. Quintero required surgery for a puncture wound to his heart and was in [*2] the Intensive Care Unit at Bellevue Hospital for eight days. Preliminarily, we note that the verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The jury could reasonably conclude from the video footage and Rahman's testimony that defendant stabbed Quintero with a sharp object during the altercation. However, the evidence was legally insufficient to establish defendant's liability under an acting in concert theory, as the People presented no evidence that defendant was aware that Traore possessed or used a dangerous instrument and, thus, no evidence that defendant shared with Traore the required intent to cause serious physical injury or physical injury ( see People v Campbell , 79 AD3d 624 , 624 [1st Dept 2010], lv denied 17 NY3d 793 [2011]). Nevertheless, the court's erroneous charge does not require reversal because \"[w]here, as here, a general verdict has been rendered and there are two lawful grounds upon which the jury could have reached that verdict but one of those grounds lacks support in the evidence, we may presume that the jury reached its determination upon the factually sufficient grounds\" ( People v Giordano , 87 NY2d 441, 451 [1995], citing Griffin v United States , 502 US 46 [1991]). Reversal is required, however, because the court should have granted defendant's request to charge the jury with attempted assault in the third degree as a lesser included offense. Both requirements of the applicable test were met ( see People v Glover , 57 NY2d 61, 64 [1982]). The court erroneously concluded that the second prong of the Glover test was not satisfied. Viewing the evidence in the light most favorable to defendant ( see People v Martin , 59 NY2d 704, 705 [1983]), there is a reasonable view of the evidence that defendant merely attempted to cause physical injury to the victim without use of a dangerous instrument to cause that injury ( see e.g. People v Battle , 22 NY2d 323, 324-325 [1968]; People v Brown , 117 AD3d 1536 , 1537-1538 [4th Dept 2014]; People v Pezzella , 103 AD2d 851, 851-852 [2d Dept 1984]; cf. People v Nieves , 136 AD2d 250 [1st Dept 1988]). Concur—Manzanet-Daniels, J.P., Moulton, Mendez, Rosado, O'Neill Levy, JJ."
},
{
"from": "gpt",
"value": "Trial court should not have instructed jury on acting in concert culpability,\nsince the People presented no proof that the defendant should be held\nliable under that theory. Error deemed harmless under People v Giordano,\n87 NY2d 441, 451 (1995) (\"where, as here, a general verdict has been\nrendered and there are two lawful grounds upon which the jury could have\nreached that verdict but one of those grounds lacks support in the\nevidence, we may presume that the jury reached its determination upon the\nfactually sufficient grounds\"). But new trial ordered because court should\nhave charged the jury on Attempted Assault 3 as a lesser included offense\nsince there was a reasonable view of the evidence that defendant merely\nattempted to cause physical injury to the victim without using a dangerous\ninstrument to cause that injury."
}
]
|
2024.03283 | [
{
"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 Dortch 2024 NY Slip Op 03283 [228 AD3d 1329] June 14, 2024 Appellate Division, Fourth 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 Chester Dortch, Appellant. David M. Giglio, Utica, for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Amy N. Walendziak of counsel), for respondent. Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered February 23, 2018. The judgment convicted defendant upon a jury verdict of robbery in the first degree, robbery in the second degree, and assault in the second degree. It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [3]), robbery in the second degree (§ 160.10 [2] [a]), and assault in the second degree (§ 120.05 [2]). The conviction arises out of an incident in which the defendant allegedly, inter alia, cut a woman with a knife and forcibly stole property from her while they were seated in a car owned by defendant's girlfriend. Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). We agree with the defendant that Supreme Court failed to respond meaningfully to a jury note and we therefore reverse the judgment and grant defendant a new trial. A court is required to respond meaningfully to a jury request ( see CPL 310.30; People v Malloy , 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]). While \" '[n]ot every failure to comply with a jury's request for information during deliberation is reversible error,' \" reversal is required where the \" 'failure to respond seriously prejudice[s] the defendant' \" ( People v Lourido , 70 NY2d 428, 435 [1987]; see People v Taylor , 26 NY3d 217 , 224 [2015]). Here, the jury submitted a note requesting, inter alia, a readback of testimony from the victim \"about the time she was in the car on Glenwood until she was out of the car from both defense and the DA's questions.\" The court responded to the jury's request by reading back only testimony from the victim on direct examination about the time that she was inside the car. The court did not order the readback of any cross-examination, which included questioning about inconsistencies in the victim's account of the incident, including questions about the victim's earlier statement to the police describing a conversation that she had with defendant outside the car and questions regarding her statement to the police on the day of the incident that the driver of a car attempted to pull her into the car through the window. The court also instructed the jury that only direct examination included questions with respect to the victim being inside the car and, despite the jury's request to hear questioning from both the prosecution and the defense, the court did not request clarification from the jury whether they wanted to hear the defense's cross-examination regarding the incident. A meaningful response to a request for a readback of testimony \"is presumed to include cross-examination which impeaches the testimony to be read back\" ( People v Grant , 127 AD3d 990 , 991 [2d Dept 2015], lv denied 26 NY3d 968 [2015] [internal quotation marks omitted]; see People v Sommerville , 159 AD3d 1515 , 1516 [4th Dept [*2] 2018], lv denied 31 NY3d 1121 [2018]). We conclude that the court's \"failure to give the jury necessary information and its inaccurate . . . remarks prejudiced the defense,\" and that, under the totality of the circumstances in this case, the court abused its discretion \"by failing to adequately answer the jurors' . . . note and creating a false impression of the nature of the evidence\" ( Taylor , 26 NY3d at 227). We also agree with defendant that the court erred in refusing to conduct a suppression hearing with respect to the search of the vehicle and the seizure of the knife during that search. Initially, we conclude that, as the daily user of the vehicle, defendant has standing to seek suppression of the evidence seized during the search of the vehicle ( see generally People v Ramirez-Portoreal , 88 NY2d 99, 108 [1996 ]; People v Banks , 85 NY2d 558, 561-562 [1995]). Further, we conclude that defendant raised a factual dispute regarding the voluntariness of the consent to search the vehicle given by the owner of the vehicle, i.e., defendant's girlfriend. \"[A] motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point\" ( People v Gruden , 42 NY2d 214, 215 [1977]). A suppression motion my be summarily denied \"if [the] defendant does not allege a proper legal basis for suppression, or (with two exceptions) if the 'sworn allegations of fact do not as a matter of law support the ground alleged' \" ( People v Mendoza , 82 NY2d 415, 421 [1993], quoting CPL 710.60 [3] [b]). \"[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information\" ( id. at 426). Here, defendant's factual submissions, which included body camera footage capturing a conversation between police officers where they allegedly discuss their intent to threaten to seize the vehicle from defendant's girlfriend in order to attempt to obtain her consent to search the vehicle, and allegations that, after the girlfriend purportedly consented to a search of the vehicle, she nevertheless attempted to move the knife out of plain view before the vehicle was searched, are sufficient to warrant a hearing to determine whether the girlfriend's consent to search \"was induced by overbearing official conduct and was not a free exercise of the will\" ( People v Gonzalez , 39 NY2d 122, 130 [1976]). In light of our determination, we do not address defendant's remaining contentions. Present—Whalen, P.J., Curran, Greenwood, Nowak and Keane, JJ."
},
{
"from": "gpt",
"value": "Reversed on several grounds, including court’s failure to respond\nmeaningfully to a jury note requesting readback testimony. Jury requested\nreadback of direct and cross of robbery/assault victim about certain time\nframe during which she was in a car until she got out - asked for the DA’s\nquestions and the Defense’s questions. Court only read back direct only.\nOmission was not harmless error, because the cross-examination included\nquestions about:\ninconsistencies in the victim’s account of the incident\nabout the victim’s earlier statement to the police\ndescribing a conversation that she had with defendant outside the car\nand\nthe victim's statement to the police on the day of the incident that the\ndriver of a car attempted to pull her into the car through the window."
}
]
|
2024.02227 | [
{
"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 Franklin 2024 NY Slip Op 02227 [42 NY3d 157] April 25, 2024 Halligan, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 9, 2024 [*1] The People of the State of New York, Appellant, v Cid C. Franklin, Respondent. Argued March 14, 2024; decided April 25, 2024 SUMMARY Statement of Case Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered July 6, 2022. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), which had convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree; and (2) ordered a new trial. People v Franklin , 207 AD3d 476 , reversed. {**42 NY3d at 159} OPINION OF THE COURT Halligan, J. This case requires us to determine when an out-of-court statement is \"testimonial\" and thus triggers the requirements of the Sixth Amendment's Confrontation Clause. Consistent with precedent from the United States Supreme Court, we ask whether, in light of all the circumstances viewed objectively, the statement was created for the primary purpose of serving as trial testimony. Contrary to the Appellate Division, we conclude that the Criminal Justice Agency (CJA) report at issue here does not qualify under this standard. I. In the course of responding to a road rage incident that included a report of a firearm, police officers searched the basement of the home that the defendant Cid Franklin shared with his son and stepmother, Grace Mapp. Officers discovered a gun in a basement closet containing blankets, pillows, and other miscellaneous items belonging to both Mapp and Franklin. Franklin was subsequently arrested and, while in Queens central booking prior to arraignment, interviewed by an employee of the Criminal Justice Agency, as is standard practice for New York City defendants. CJA is a nonprofit organization funded by the City of New York that provides pretrial services similar to those provided by probation departments in counties outside the city ( see People v Yu , 167 AD3d 521 , 522 [1st Dept [*2] 2018]). As relevant here, CJA interviews \"nearly all individuals arrested\" in New York City to \"make a pretrial release recommendation to the court\" (New York Criminal Justice Agency, http://www.nycja.org/ [hover over \"Services\" in the main menu and click on \"Court Services\" in the drop-down menu]; see also People v Jin Cheng Lin , 26 NY3d 701 , 715 n 1 [2016]; People ex rel. Maxian v Brown , 77 NY2d 422, 425 [1991]). In interviewing arrestees to determine their suitability for pretrial release, CJA employees ask them questions regarding community ties and warrant history, including an arrestee's address, how long they have lived there, their employment status, whether they expect anyone at their arraignment, their education, and other relevant queries. {**42 NY3d at 160} The CJA employee records the answers to these questions on a standardized form titled \"Interview Report.\" The employee also verifies the information provided by the arrestee with a third person, whose contact information the CJA employee obtains from the arrestee, and records that verification in a separate section of the form. The CJA employee then gives the completed form, including a recommendation on whether the arrestee is suitable for release, to the arraignment judge, the prosecutor, and defense counsel. As relevant here, the CJA employee who interviewed Franklin recorded his address as \"[XX] 168TH ST, BSMT.\" The employee also recorded that he or she verified this information with Mapp, referred to as Franklin's \"mother\" on the form. That form was central to the People's case at trial. No DNA or fingerprints were discernable on the gun. The officer who took Franklin's pedigree information testified that Franklin gave his address as [XX] 168th Street, without specifying where in the house he lived. None of the witnesses who testified at Franklin's trial provided direct proof that he lived in the basement, and the People put forth no evidence that any personal documents or effects of Franklin's were found there. To prove that Franklin had dominion and control over the basement, the People introduced the CJA form through the current CJA Queens borough supervisor, Oscar Morales. The interviewer was no longer employed by CJA and did not testify. Defense counsel objected to the introduction of the form both as hearsay [FN1] and as a violation of Franklin's Sixth Amendment right of confrontation. Supreme Court rejected both objections, admitting the form as either \"a public document\" or \"a business record,\" and finding that \"there is no Crawford violation in that this was not made specifically for [a] prosecution purpose,\" but rather \"as an aid to the Judge to [determine] if any bail should be set at arraignments.\" Franklin was convicted of one count of second-degree criminal possession of a weapon (Penal Law § 265.03 [3]). {**42 NY3d at 161} The Appellate Division reversed, holding that the introduction of the report through Morales, who did not author it, violated Franklin's Confrontation Clause rights (207 AD3d 476 [2d Dept 2022]). A Judge of this Court granted leave to appeal (39 NY3d 986 [2022]), and we now reverse. II. The Sixth Amendment of the Federal Constitution provides that \"[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against [them]\" (US Const Amend VI). The Confrontation Clause focuses on \" 'witnesses' against the accused—in other words, those who 'bear testimony' \" ( Crawford v Washington , 541 US 36, 51 [2004]). Thus, to determine whether the defendant's confrontation rights were implicated by introduction of the CJA report, we ask whether the report was \"testimonial\" ( id. ). The Appellate Division relied on Crawford 's definition of testimony as \"[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact\" (207 AD3d at 476, quoting Crawford , 541 US at 51). Citing several decisions that apply an \"essential element\" test, the Court reasoned that introduction of the CJA form violated the Confrontation Clause because it was \"admitted in order to establish an essential element\" of the charged crime, and defendant \"was never given the opportunity to cross-examine the CJA employee\" who prepared it ( id. at 477, citing People v Ellerbee , 203 AD3d 1068 , 1069 [2d Dept 2022] [testimony \"improperly admitted in order to [*3] establish an essential element of the crime\" in violation of the Confrontation Clause], People v Stokeling , 165 AD3d 1180 , 1181 [2d Dept 2018] [same], and People v Francis , 114 AD3d 699 , 700 [2d Dept 2014] [introduction of facts going to essential element through supervisor insufficient]). These \"essential element\" cases generally rest on our decision in People v Pacer (6 NY3d 504 [2006]). In Pacer , decided two years after Crawford , the People relied on an affidavit explaining the Department of Motor Vehicle's routine procedures that had been prepared for use at trial to prove that the defendant knew or had reason to know his driving privileges had been revoked ( see id. at 507). This Court held that introduction of the affidavit violated the defendant's right of confrontation because \"the lack of a live witness to confront eliminated defendant's opportunity to contest a decisive piece of evidence against him\" ( id. at 512). Pacer and several {**42 NY3d at 162} subsequent cases, including the Appellate Division's decision below and the cases it cites, look to whether an out-of-court statement establishes an essential element of the crime to determine whether it is testimonial. As we recently recognized in People v Ortega , the Supreme Court has refined its Confrontation Clause analysis on numerous occasions since it decided Crawford in 2004 (40 NY3d 463, 474 [2023]; [FN2] see also Ohio v Clark , 576 US 237, 244 [2015] [noting the Supreme Court's \"labor( )\" subsequent to Crawford to \"flesh out what it means for a statement to be 'testimonial' \"]). These decisions render some of our earlier analyses at odds with the current framework ( see e.g. Ortega , 40 NY3d at 474 [recognizing that our previous analysis in People v Freycinet (11 NY3d 38 [2008]) was \"inconsistent with the demands of the Confrontation Clause as articulated more recently by the Supreme Court\"]). As with the test applied to autopsy reports in Freycinet , the \"essential element\" approach in Pacer has been eclipsed by subsequent developments in Confrontation Clause jurisprudence. We now clarify that in ascertaining whether out-of-court statements are testimonial, courts should inquire, as the U.S. Supreme Court has instructed, \"whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony' \" ( Clark , 576 US at 245, quoting Michigan v Bryant , 562 US 344, 358 [2011]). When that standard is met, the statement should be deemed testimonial for purpose of the Confrontation Clause. III. The Supreme Court first articulated the primary purpose test only months after this Court decided Pacer , in two cases concerning out-of-court statements from domestic abuse victims ( see Davis v Washington and Hammon v Indiana , 547 US 813 [2006]). In Davis , the statements at issue were made to a 911 operator ( id. at 817-819), and in Hammon , to police officers after a physical attack ( see id. at 820). The Supreme Court {**42 NY3d at 163} concluded that the statements in Davis were not testimonial because they were made \"under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency,\" while in Hammon , the statements were testimonial because \"the primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution\" ( see id. at 822). Since Davis and Hammon , the Supreme Court has continued to apply the primary purpose test in cases concerning out-of-court conversations ( see Bryant , 562 US at 360 [examining the \"primary purpose\" of an out-of-court interrogation through an \"objective analysis of the circumstances of (the) encounter and the statements and actions of the parties\"]; Clark , 576 US at 245 [reaffirming the primary purpose test]). [FN3] Clark confirms the centrality [*4] of the primary purpose test and sets forth relevant considerations: whether the statements were made under circumstances indicating \"that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution\" ( id. at 244 [internal quotation marks omitted], quoting Davis , 547 US at 822); the \"informality of the situation and the interrogation,\" with a \"formal station-house interrogation, like the questioning in Crawford , . . . more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused\" ( id. at 245 [internal quotation marks omitted], quoting Bryant , 562 US at 366, 377); the \"standard rules of hearsay, designed to identify some statements as reliable\" ( id. [internal quotation marks omitted], quoting Bryant 562 US at 358-359); and to whom the statements are made, as \"[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be {**42 NY3d at 164} testimonial than statements given to law enforcement officers\" ( id. at 249). Defendant contends that Crawford articulates a \"core class\" of testimonial statements that are always subject to the Confrontation Clause and thus immune from primary purpose analysis, and that the CJA report here falls within that category because an objective witness would reasonably believe it \"would be available for use at a later trial\" (541 US at 52 [internal quotation marks omitted]). Crawford , however, acknowledged that it was leaving \"for another day any effort to spell out a comprehensive definition of 'testimonial' \" ( id. at 68), and the Supreme Court has subsequently applied the primary purpose test to statements falling within Crawford 's \"core class\" of police interrogations to determine whether they were testimonial ( see Davis , 547 US at 822; Bryant , 562 US at 355). Precedent therefore confirms that an out-of-court statement is testimonial when, viewed objectively, all the circumstances indicate its primary purpose was to create an out-of-court substitute for trial testimony. [FN4] IV. We now turn to whether the introduction of the CJA Interview Report violated the Confrontation Clause. The CJA report is markedly different from the mine-run of evidence that runs afoul of the Confrontation Clause in several key respects. First, though we do not resolve the defendant's hearsay objection here ( see n 1, supra ), we note that the CJA report was introduced as a business or public record. As the Supreme Court has explained, \"[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial\" ( Melendez-Diaz , 557 US at 324; {**42 NY3d at 165} see also Crawford , 541 US at 56 [\"Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records\"]). Second, the People introduced the report not to put before the jury the CJA interviewer's conclusions, but as evidence that Franklin had \"self-report[ed]\" his residence as the basement of the house. According to the CJA supervisor's testimony, standard practice is that all the information of the report, including the defendant's address, comes \"from the defendant,\" though it is also later \"verified\" through a third party. But the People's argument that because the defendant, rather than the CJA employee, was the declarant, the statement falls outside the ambit of the Confrontation Clause is unpreserved for our review. We therefore proceed to the merits of the Confrontation Clause assuming, arguendo, that the CJA interviewer was the declarant of the statements found on the form for purposes of the Confrontation Clause. Under the relevant circumstances, we conclude that the primary purpose of the CJA interview report was not to create an out-of-court substitute for trial testimony, and that it is not therefore testimonial. The primary purpose of [*5] a CJA interview and resulting report is administrative, not something tailored \"to establish or prove past events potentially relevant to later criminal prosecution\" ( Clark , 576 US at 244 [internal quotation marks omitted]). Its objective is to give the arraignment judge information pertaining to a defendant's suitability for pretrial release ( see Yu , 167 AD3d at 522), not to elicit incriminating statements. This function is reflected in the pedigree nature of the questions posed to defendants during these interviews ( see e.g. People v Williams , 264 AD2d 325, 328-329 [1st Dept 1999] [defendant's \"CJA interview\" is \"defendant's pedigree evidence\"]), and confirmed by the notation on the face of the report: a CJA report \"assesses the defendant's risk of flight by considering . . . community ties and warrant history as defined in sections 2 (a) (ii) and 2 (a) (iii) and (vi) of CPL 510.30 and open cases,\" and \"does not consider other criteria listed in CPL 510.30 such as defendant's mental condition, the weight of the evidence, or the possible sentence.\" We find it significant that a CJA interview report is routinely prepared for all arrestees in New York City. The information collected is the same in every case, regardless of the particular facts or the elements of the relevant crime: the interviewer collects a predetermined set of pedigree information from the defendant {**42 NY3d at 166} and makes a recommendation to the court as to the defendant's suitability for pretrial release. [FN5] As for the verification step ( see dissenting op at 173), the record indicates that the defendant provides the verification source and contact information, and there is no indication that the CJA employees conduct any independent inquiries. The dissent opines, without any record support, that CJA interviewers are \"standing in the shoes of a law enforcement officer\" (dissenting op at 176). To the extent this characterization sweeps in practices \"everywhere else in the state\" ( id. at 171), our decision rests on the facts before us in this case, not suppositions about other approaches to providing pretrial services. As explained, while CJA employees work within the court system, they are not \"principally charged with uncovering and prosecuting criminal behavior\" ( Clark , 576 US at 249), and for this reason are not law enforcement officers as contemplated by the Supreme Court's Confrontation Clause jurisprudence. [FN6] That a CJA report is generated for a court and has consequences for a defendant's liberty does not change the fact that its primary purpose is administrative, and not testimonial. [FN7] We note that other courts have reached a similar conclusion regarding other records primarily prepared for administrative reasons ( see Melendez-Diaz , 557 US at 324 [records \"created for the administration of an entity's affairs and not for the purpose {**42 NY3d at 167} of establishing or proving some fact at trial\" are \"not testimonial\"]; see also United States v Noria , 945 F3d 847, 856, 859 [5th Cir 2019] [forms created by Customs and Border Patrol relaying migrants' basic information not testimonial because routinely created in the course of the agency's \"non-adversarial duties,\" not \"in anticipation of litigation\"]; United States v Caraballo , 595 F3d 1214, 1228-1229 [11th Cir 2010] [\"basic biographical information\" that is \"routinely requested\" not testimonial, though it may later become relevant to prosecution]; United States v Torralba-Mendia , 784 F3d 652, 666 [2015] [immigration documents \"prepared for administrative purposes\" not testimonial]; State v Staudenmayer , 411 [*6] Mont 167, 176, 523 P3d 29, 35 [2023] [minute entries not testimonial because primary purpose is to \"aid the administration of the trial court\"]; Jackson v United States , 924 A2d 1016, 1020-1021 [DC 2007] [docket entries and notice to return created for operation of the court, not to document facts or events for future prosecution]). Finally, the pedigree information collected, including the defendant's address, is pertinent to establishing community ties; it is only incidentally relevant in this case ( see e.g. Noria , 945 F3d at 857-858 [\"No doubt, the biographical portion of an (immigration form) can be helpful to the Government in a later criminal prosecution,\" but it is not testimonial because its \"primary purpose is administrative, not investigative or prosecutorial\"]; Caraballo , 595 F3d at 1229 [an \"incidental or secondary use\" is of \"little moment\" because the question is the \" primary purpose\"]). The fact that the report became relevant during this trial does not alter or diminish the primary purpose for which it was created ( see Clark , 576 US at 250). The introduction of the CJA interview report thus did not violate the defendant's right of confrontation, and consequently, we reverse. [FN8] Accordingly, the order of the Appellate Division should be reversed, and the case remitted to that Court for consideration of {**42 NY3d at 168} the facts and issues raised but not determined on appeal to that Court. Aarons, J. [FN*] (dissenting). The issue is whether an interview report recommending defendant's pretrial release, produced by the New York City Criminal Justice Agency (CJA) at Queens Central Booking while defendant awaited arraignment and provided directly to the arraignment court, was \"testimonial\" and thus subject to the Confrontation Clause. I would conclude that the CJA report was a \"statement[ ] that [was] made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial\" ( Crawford v Washington , 541 US 36, 52 [2004] [internal quotation marks and citation omitted]). Put another way, \"its primary purpose was testimonial\" ( Ohio v Clark , 576 US 237, 245 [2015]). [*7] The majority takes the opposite view, relying on assumptions about the relevant circumstances, i.e., pretrial release determinations are administrative, the residential address collected is merely \"pedigree information,\" rather than viewing the CJA report as a critical datapoint in assessing pretrial release. And for that effort, the majority concludes that a jailhouse interview report generated at the start of a criminal prosecution and submitted to the court to utilize in a core judicial decision concerning a defendant's liberty is not a \"testimonial\" statement. Because the Sixth Amendment right of confrontation applies to the CJA report at issue here, I respectfully dissent. I. A. The facts of defendant's alleged crime are essentially as the majority articulates. Police found a gun in the basement of a house defendant shared with his stepmother and son but found no direct evidence that defendant had dominion and control over that space—an element deemed essential by all parties to prove defendant constructively possessed a weapon in violation of the law. After defendant's arrest, he was jailed at Queens Central Booking to await arraignment. There, an employee of the {**42 NY3d at 169} CJA—a nonprofit agency under contract with and funded by the City of New York—interviewed defendant to assess his fitness for pretrial release and bail and make a recommendation to the arraignment court. Significantly, on the subject report, the CJA employee wrote \"BSMT\" next to defendant's current address of \"[XX] 168TH ST.\" The report also indicates defendant's mother \"verified\" that defendant lived with her at that address, and that he had lived there for three years. And herein lies the problem—the arresting officer testified only to defendant's street address, whereas the CJA report adds \"BSMT.\" [FN1] Therefore, it is critical to this case to know who said that he lived in the basement, when, and under [*8] what conditions. The interview report captures data about defendant as well as his mother, which undermines the reliability of the form language indicating that the address came from defendant. Regardless, the only \"witness\" statement the People offered to prove defendant occupied the basement was the CJA employee's report asserting defendant lived at his home address in a \"BSMT.\" B. Rather than produce the CJA employee who wrote \"BSMT\" on the form, the People introduced the report through Oscar Morales, the recently installed Queens borough manager for CJA who did not interview defendant, complete the report, or have any direct knowledge as to whether defendant said he lived in the basement or whether he in fact lived there. Indeed, when the interview was conducted in 2016, Morales was working {**42 NY3d at 170} at the Bronx CJA in an unspecified role for an unspecified period with no indication he knew of CJA's business practices at that time ( cf. CPLR 4518). Nevertheless, Morales testified to the procedure used to generate the report at Queens Central Booking—where he had been working for about a year. According to Morales, the CJA interviewer goes to an arrestee's cell, who is called over for the five-minute interview while waiting to be arraigned. At this point, the interviewer uses a tablet to collect some information from the arrestee, including the arrestee's \"name, date of birth, sex, address, prior address, whether or not they work, [and] whether or not someone is coming to court during their arraignment.\" The interviewer records this information on an interview report form, then verifies the information collected with another source identified by the arrestee. All of this is done so that \"[CJA] can verify community ties in order to make our recommendation to the Judge that they can be released without paying bail.\" The interviewer calculates point values based upon the arrestee's and verifier's responses and records a recommendation for pretrial release on the interview report. The court receives a copy of the report along with the prosecutor and defense counsel. [*9] C. The majority asserts that the CJA report serves the court's administrative function. Not so. The CJA report is created in the context of an arraignment—a decidedly judicial affair ( see Clark v Town of Ticonderoga , 291 AD2d 597, 600 [3d Dept 2002], lv denied 98 NY2d 604 [2002]). Among other functions, an arraignment commences the criminal action, and is the process by which a person charged with a crime is brought under the personal jurisdiction of the court ( see CPL 1.20 [9]). With jurisdiction established, the court then issues a \"securing order\" that reasonably assures the defendant will return to court (CPL 500.10 [5]; see CPL 510.10 [1]). Depending on the crime alleged and certain other factors, the securing order may incarcerate the defendant to await trial with or without bail or direct release on the defendant's own recognizance with or without conditions ( see CPL 500.10 [5]; 510.10 [1]). To make that determination, the court at the time of defendant's arraignment in 2016 was required to use \"available information\" to consider, among many other factors, defendant's \"family ties and the length of [their] residence if any in the community,\" {**42 NY3d at 171} along with defendant's \"employment and financial resources\" and \"previous record[,] if any[,] in responding to court appearances when required or with respect to flight to avoid criminal prosecution\" (CPL former 510.30 [2] [a]). A court may not necessarily have had access to the information required to issue the securing order, but it could rely upon a report from a pretrial services agency to collect the information at the time a defendant is arraigned. Such an agency is either \"a public entity under the supervision and control of a county or municipality or a non-profit entity under contract to the county, municipality or the state\" (CPL 510.45 [2]). Outside of New York City, pretrial services are generally the purview of the county probation departments ( see People v Yu , 167 AD3d 521 , 522 [1st Dept 2018] lv denied 33 NY3d 1037 [2019]). Within New York City, the CJA does that job pursuant to a contract with the City, which funds its operation ( see id. ). Said differently, the CJA does a job that everywhere else in the state is entrusted to law enforcement officers ( see generally CPL 2.10 [24]; 2.20). [*10] II. The Federal Constitution guarantees criminal defendants the right \"to be confronted with the witnesses against [them]\" (US Const 6th Amend). \"In particular, the Confrontation Clause is concerned with admission of testimonial statements made by declarants who are unavailable for cross-examination\" ( People v Hao Lin , 28 NY3d 701 , 704 [2017], citing Williams v Illinois , 567 US 50, 76 [2012]). \"Thus, under [Supreme Court] precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. 'Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause' \" ( Ohio v Clark , 576 US at 245, quoting Michigan v Bryant , 562 US 344, 359 [2011]). Tying the confrontation right to a determination that a hearsay statement is \"testimonial\" originates in Crawford v Washington (541 US 36), though that case did not define the universe of statements that could be testimonial. Instead, the Crawford Court looked to an 1828 Webster's Dictionary and used the definitions of witness and testimony to identify a \"core class\" of testimonial statements. The Court listed \"[v]arious formulations of this core class,\" including, \"statements that were made under circumstances which would lead an objective {**42 NY3d at 172} witness reasonably to believe that the statement would be available for use at a later trial\" ( id. at 51-52 [internal quotation marks and citation omitted]). The Court also identified \"affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially\" ( id. at 51 [internal quotation marks and citation omitted; emphasis added]). Indeed, \"[r]egardless of the precise articulation, some statements qualify under any definition—for example, ex parte testimony at a preliminary hearing\" ( id. at 52). Of course, Crawford was addressed to an out-of-court statement by a witness to police, which was not a scenario animating the Sixth Amendment's ratification in late eighteenth century ( see id. at 52-54). Consequently, police interrogations did not fit neatly into the core class of testimonial statements assembled using the tools of originalism. The Crawford Court, speaking through Justice Scalia, temporarily solved this problem by analogizing modern police interrogations to questioning by seventeenth century English magistrates and then simply included those interrogations in the core class. [*11] Because Crawford could be read as subjecting all out-of-court statements to police to the Confrontation Clause analysis, the Supreme Court later refined its definition of testimonial through the primary purpose test. The Court in Davis v Washington (547 US 813 [2006]) emphasized that the correct application of the test must look to all of the surrounding circumstances. Accordingly, the Court concluded that statements made \"under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency\" were not testimonial—for example, a 911 call reporting an assault that had occurred moments before ( id. at 818, 822). By contrast, statements \"are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution,\" such as statements made to police arriving at the location of a domestic violence incident that had already ended, and therefore the officers' questions about that incident were investigatory ( id. at 821-822). Nothing in Davis overruled Crawford ; the fact that the Court limited how statements to police triggered the right of confrontation did not negate the other examples of core-class {**42 NY3d at 173} testimonial statements ( see Lambert v Warden Greene SCI , 861 F3d 459, 469-470 [3d Cir 2017]). Ohio v Clark (576 US 237) further refined the primary purpose test as applied to out-of-court statements made by and to individuals who are not law enforcement. Those statements are by their nature less likely to be testimonial than statements made to police and other government officials ( see Crawford v Washington , 541 US at 51). In that case, statements by a child to his teachers reporting abuse were not testimonial because the primary purpose of those conversations was protective, not investigatory, and the teachers were not \"principally charged with uncovering and prosecuting criminal behavior\" ( Ohio v Clark , 576 US at 249). The Clark Court articulated the primary purpose test as \"whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony' \" ( id. at 245, quoting Michigan v Bryant , 562 US at 358). This is the test the majority clarifies that courts should apply to ascertain whether out-of-court statements are testimonial ( see majority op at 164). [*12] III. A. \"[C]onsidering all the relevant circumstances here,\" the primary purpose of the CJA interview report was testimonial ( Ohio v Clark 576 US at 246; see Michigan v Bryant , 562 US at 369). The CJA report—generated for and given directly to the court during a criminal prosecution to prove facts and make conclusions about defendant—is a \"pretrial statement[ ] that declarants would reasonably expect to be used prosecutorially\" ( Crawford v Washington , 541 US at 51). Although titled an interview report, the verification step makes the process of generating it investigative. The CJA provides services of a probation department, including operating a supervised release program in Queens, which, in my view, makes that organization like a law enforcement agency for present purposes. Assuming the procedure outlined by Morales was followed—an issue defendant does not concede—the CJA employee created the subject report after questioning defendant while he was in custody. Although the interview report form in the record was not a sworn statement {**42 NY3d at 174} , \"the absence of oath [i]s not dispositive\" of testimoniality ( id. at 52). That the report was generated for the court itself indicates it was made with sufficient solemnity to qualify as testimonial ( see id. ). In sum, the formality of the circumstances under which the report was created, the role of the CJA employee, the interview and verification procedure, and the intended recipient all lean toward concluding the CJA interview report was testimonial ( see id. at 51; cf. Garlick v Lee , 1 F4th 122, 134-135 [2d Cir 2021], cert denied 595 US &mdash, 142 S Ct 1189 [2022]). Four other considerations merit attention in the analysis. First , the report was generated in preparation for arraignment—the start of defendant's criminal prosecution ( compare United States v Noria , 945 F3d 847, 849-851, 856 [5th Cir 2019], cert denied 589 US &mdash, 140 S Ct 2629 [2020]; United States v Hano , 922 F3d 1272, 1287 [11th Cir 2019], cert denied 589 US &mdash, 140 S Ct 488 [2019]; United States v Caraballo , 595 F3d 1214, 1226-1227, 1229 [11th Cir 2010]). Second , the CJA interview report functioned, essentially, as a fact-finding tool for the court to use in meeting its obligation to issue a securing order informed by relevant considerations ( see CPL former 510.30 [2] [a]; People v Yu , 167 AD3d at 522). This direct connection to the court sets the CJA interview report apart from the kinds of statements the primary purpose test was written to address in Clark and Davis . Third , the statements in the report \"can be used against [arrestees] if they violate any release conditions\" ( People v Brown , 109 Misc 2d 366, 369 [Sup Ct, NY County 1981]). [*13] Fourth , the report provides data to determine pretrial release, which bears on an arrestee's prosecution. As one trial judge wrote over 40 years ago, \"Competent studies have fully documented the many disadvantages endured by incarcerated defendants—both pretrial and postconviction—as compared to their bailed or paroled counterparts. Lack of adequate ability to prepare a defense, to consult with counsel, to communicate with relatives and friends, to locate witnesses and to gather evidence, are but a few, pretrial; as well as a greater likelihood of conviction in all events. Postconviction, {**42 NY3d at 175} the detainee can expect a more severe sentence.\" ( Id. at 368 [citation omitted].) [FN2] B. In light of these considerations, I cannot subscribe to the majority's conclusion that the subject report fails the Clark primary purpose test. The report was a testimonial statement because it was generated for the court \"to create a record for [defendant's] criminal prosecution\" ( United States v LeBeau , 867 F3d 960, 981 [8th Cir 2017]). But for that prosecution, there would be no conversation between the CJA employee and defendant and thus no report—a relationship that suggests the primary purpose of the conversation and report was \"prosecutorial\" ( United States v Noria , 945 F3d at 857). Simply stated, the declarant at issue—the CJA employee—is speaking through the report to the court. [FN3] No doubt, defendant and the CJA employee knew this when defendant's interview occurred ( see People v Brown , 109 Misc 2d at 369). The CJA employee's questions and that employee's duty to ask them—and thus the report generated by that questioning—were prescribed by the employee's obligation to the court ( compare Ohio v Clark , 576 US at 249). Defendant's responses to the CJA employee's questions were therefore informed by his awareness of the employee's role as a court functionary ( compare id. ). [*14] Worth noting is that the primary purpose test was developed on facts that differ from this case in important ways. Put plainly, neither the police in Davis nor the teachers in Clark wrote reports about their conversations with the complainants {**42 NY3d at 176} in those cases that they immediately handed directly to the court for a judicial determination as those prosecutions commenced. [FN4] Identifying this case's distinguishing features is important because the primary purpose test is a fact-driven inquiry ( see e.g. Ohio v Clark , 576 US at 246-251; Michigan v Bryant , 562 US at 359, 374-375). And the Supreme Court has not provided an exhaustive list of considerations bearing on the primary purpose test ( see Davis v Washington , 547 US at 822). Relatedly, the Supreme Court has not set categorical rules for determining testimonial statements ( see Ohio v Clark , 576 US at 246). [FN5] In light of this history, I do not read Clark or other Supreme Court precedent to bar this Court from holding the CJA report testimonial. In any event, the primary purpose test requires consideration of all relevant circumstances. The report here took the place of the CJA employee speaking directly to the court at the start of defendant's criminal prosecution to inform a judicial decision impacting him. From that perspective, and in view of all of the relevant circumstances—many of which were not at issue in Clark and its predecessors—the primary purpose of the CJA interview report was testimonial ( cf. Lambert v Warden Greene SCI , 861 F3d 459, 469 [3d Cir 2017], quoting Crawford v Washington , 541 US at 68). [*15] IV. The CJA report is not some kind of intake form; it is a statement by a person standing in the shoes of a law enforcement officer working within the criminal justice system about a defendant that has critical consequences for that defendant's liberty. Starting at arraignment, the report can help or hurt a defendant: declining to participate in the CJA interview will count against the defendant and jeopardize his freedom despite being cloaked with the presumption of innocence ( see People v Brown , 109 Misc 2d at 374). Regardless of its contents, the People {**42 NY3d at 177} receive a copy, and it can be used to make any case they can against a defendant's interests. And it's tucked into the court's file to be pulled out and leveraged against a defendant at any time during the prosecution. Today, this Court approves of using a CJA interview report to prove where a defendant lived in a prosecution that hinges on that fact. Tomorrow, it may be used to prove any other fact that the report assembles, such as a defendant's employment status, where he gets his money, whom he financially supports, how he pays for his food, his history in treatment programs, or any other information that the CJA gives to the court about a locked-up defendant. [FN6] The confrontation right does not bar the report from coming in as evidence at all; it simply requires the proponent of the evidence to produce the witness who wrote it. Nothing more. The Confrontation Clause is meant to protect against convictions based upon untested and unreliable evidence. In this case, a lone statement of questionable provenance secured defendant's conviction. The People concede that, if the trial court erred, that error would not be harmless, necessitating a new trial. I agree and cast my vote in favor of that outcome. Chief Judge Wilson and Judges Garcia, Singas and Cannataro concur. Judge Aarons [FN*] dissents in an opinion, in which Judge Bannister [FN*] concurs. Judges Rivera and Troutman took no part. Order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on appeal to that Court. Footnotes Footnote 1: Defendant also argues before us that the report was improperly admitted under the hearsay rules ( see e.g. Matter of Leon RR , 48 NY2d 117, 122-123 [1979] [addressing embedded hearsay in business reports]; Vincent C. Alexander, Supp Prac Commentaries, McKinney's Cons Laws of NY, CPLR C4518:3 [discussing records with \"Multiple Layers of Hearsay\"]). The Appellate Division reversed the judgment based solely on its determination that the Confrontation Clause was violated, and we reach no issue in this appeal other than the grounds on which the Appellate Division ruled. Footnote 2: Ortega presents the distinct question of when forensic reports are testimonial (40 NY3d at 474; see also Melendez-Diaz v Massachusetts , 557 US 305, 307-308 [2009] [certificates of analysis indicating that seized material was cocaine]; Bullcoming v New Mexico , 564 US 647, 651 [2011] [forensic laboratory report certifying defendant's blood-alcohol concentration]; Williams v Illinois , 567 US 50, 56 [2012] [DNA profile]). We do not address that issue here. Footnote 3: The federal circuits likewise apply the primary purpose test ( see e.g. Johnson v Griffin , 2024 WL 302387, *3, 2024 US App LEXIS 1802, *8-9 [2d Cir, Jan. 26, 2024, 22-2007-pr]; United States v Latu , 46 F4th 1175, 1180 [9th Cir 2022]; United States v Stepanets , 989 F3d 88, 116 [1st Cir 2021]; United States v Miller , 982 F3d 412, 434-435 [6th Cir 2020]; United States v Mathis , 932 F3d 242, 255 [4th Cir 2019]; United States v Buluc , 930 F3d 383, 392 [5th Cir 2019]; United States v Hano , 922 F3d 1272, 1287 [11th Cir 2019]; Lambert v Warden Greene SCI , 861 F3d 459, 469-470 [3d Cir 2017]; United States v Klemis , 859 F3d 436, 444 [7th Cir 2017]; United States v LeBeau , 867 F3d 960, 980 [8th Cir 2017]; United States v Alcorta , 853 F3d 1123, 1137 [10th Cir 2017]). Footnote 4: The dissent appears to agree that the primary purpose test governs this inquiry (dissenting op at 173), notwithstanding comments that the test \"was written\" only for \"the kinds of statements . . . in Clark and Davis \" (dissenting op at 174), and suggesting that a nebulous \"but for\" standard informs the primary purpose test (dissenting op at 175). These points are either unsupported by or contradicted by precedent. To the extent the dissent suggests that courts may \"pick and choose\" among standards (dissenting op at 176 n 5), we are bound to follow the Supreme Court's precedent on the Sixth Amendment. Footnote 5: The information the defendant provides to the CJA may assist him by facilitating his release ( see New York Criminal Justice Agency, https://www.nycja.org [CJA description of its mission as \"assist(ing) the courts and the City in reducing unnecessary pretrial detention\"]). Footnote 6: Even if we viewed the CJA employee as akin to a probation officer, that alone would not make the report testimonial since we have long recognized that even police officers conduct both \"investigative inquiries\" and inquiries purely directed at \"administrative concerns\" ( see e.g. People v Wortham , 37 NY3d 407 , 415 [2021], citing People v Rodney , 85 NY2d 289, 294 [1995] [addressing the pedigree exception to Miranda ]). Footnote 7: Use of the report to determine whether a defendant should be released prior to trial does not make the report testimonial, contrary to the dissent's contention ( see e.g. dissenting op at 174-175). \" '[T]he right to confrontation is a trial right' available against witnesses at trial \" ( People v Hameed , 88 NY2d 232, 239 [1996], quoting Pennsylvania v Ritchie , 480 US 39, 52-53 [1987], and citing Barber v Page , 390 US 719, 725 [1968] [right to confrontation is \"basically a trial right,\" contrasting trial with preliminary hearings, which are \"much less searching\" inquiries into whether \"to hold the accused for trial\"]). The only case the dissent offers in support of its view is a trial court opinion that does not discuss the Confrontation Clause and has been cited only once in 40 years ( see dissenting op at 174-175, 175, 176-177, citing People v Brown , 109 Misc 2d 366 [Sup Ct, New York County 1981]). Footnote 8: Although the dissent suggests that CJA interview reports may be widely used against defendants, we have identified only four cases over the past five decades in which the prosecution has attempted to do so at trial, even though CJA presumably creates these forms for countless individuals arrested by NYPD every year ( see e.g. Jin Cheng Lin , 26 NY3d at 714-715; People v Mitchell , 74 AD3d 417 , 417 [1st Dept 2010] [holding that a CJA report was a \"business record\" and \"not testimonial\"], lv denied 15 NY3d 922 [2010]; Williams , 264 AD2d at 328-329; Brown , 109 Misc 2d at 367). Policy issues sounding in the right to counsel and the Fifth Amendment right against self-incrimination are not before us in this case and we do not opine on them ( see brief for amicus curiae University of Buffalo School of Law). Footnote *: Designated pursuant to NY Constitution, article VI, § 2. Footnote 1: The majority refers to defendant's address as \"pedigree information,\" which is the term used for basic data such as name, address and birthdate taken down after a defendant is arrested and booked. In this context, however, \"the data . . . goes far beyond the mere pedigree information secured by arresting officers during the booking procedures. For example, the police official asks simply for the defendant's residence. The CJA staff member, on the other hand, inquires also as to: the length of such residence; with whom the defendant lives; any alternative residence; and the names of friends and relatives who can confirm such information.\" ( People v Brown , 109 Misc 2d 366, 371 [Sup Ct, NY County 1981] [internal quotation marks and citations omitted].) @f2That information factors into the pretrial release recommendation. Indeed, according to the unredacted subject report, defendant received points in his favor for providing a verified \"NYC area address.\" Footnote 2: In other words, the CJA interview report informs the court's pretrial release decision, which has a measurable impact on whether a criminal prosecution will result in a conviction. And the CJA is not blind to this connection ( see e.g. New York City Criminal Justice Agency, NYC Pretrial Data, What are the court case outcomes for prosecuted arrests? , https://www.nycja.org/court-case-outcomes [last accessed Apr. 19, 2024; click on question three under \"About the Data\"] [\"In 2022, there were 87,909 disposed cases stemming from Summary Arrests that were not resolved at arraignment. . . . For those released pretrial, 24% of cases were resolved with a guilty disposition, compared to 62% for those detained until disposition\"]). In my view, that connection and the CJA's awareness of it are relevant considerations in determining whether the primary purpose of the CJA interview report \"is to establish or prove past events potentially relevant to later criminal prosecution\" ( Davis v Washington , 547 US at 822). Footnote 3: There is no dispute that the CJA employee wrote \"BSMT\" and everything else in the report. Footnote 4: I do not suggest a defendant should be able to assert the confrontation right during arraignment ( see majority op at 166 n 7). Footnote 5: Even after Clark , courts occasionally seem to pick and choose among Supreme Court decisions setting out Confrontation Clause precedent ( see e.g. United States v Foreman , 84 F4th 615, 620 [5th Cir 2023] [using test articulated in Davis v Washington (547 US 813, 822 [2006])]; United States v Noria , 945 F3d at 852 [same], quoting Bullcoming v New Mexico , 564 US 647, 659 n 6 [2011] [same]; see also People v Ortega , 40 NY3d 463 , 474 [2023], quoting Crawford v Washington , 541 US at 51; see generally United States v Miller , 982 F3d 412, 436-437 [6th Cir 2020], cert denied 141 S Ct 1354 [2021]). Footnote 6: Although there is a small number of reported cases in which the prosecution sought to introduce the CJA report as evidence ( see e.g. People v Jin Cheng Lin , 26 NY3d 701 , 714-715 [2016]; People v Mitchell , 74 AD3d 417 [1st Dept 2010], lv denied 15 NY3d 922 [2010]; People v Williams , 264 AD2d 325, 328 [1st Dept 1999], lv denied 93 NY2d 1046 [1999]; People v Brown , 109 Misc 2d at 367), that number will surely increase as a result of this case. Footnote *: Designated pursuant to NY Constitution, article VI, § 2. Footnote *:"
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"value": "Introduction of\na Criminal Justice Agency interview report was not testimonial because it\nwas not \"created for the primary purpose of serving as trial testimony\"\n(CJA is a NYC non-profit that makes pretrial release recommendations). Thus, defendant's right of confrontation was not violated."
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2024.03868 | [
{
"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 Lacen 2024 NY Slip Op 03868 [229 AD3d 435] July 18, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] (July 18, 2024) The People of the State of New York, Respondent, v Jose Lacen, Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Gamaliel Marrero of counsel), for respondent. Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered December 17, 2019, convicting defendant, after a jury trial, of attempted assault in the first degree and robbery in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 15 years, unanimously affirmed. The verdict was supported by legally sufficient evidence, and was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. Defendant's conduct of stabbing the victim in the neck with a knife evinced an intent to cause serious physical injury ( see People v Gilford , 65 AD3d 840 , 841 [1st Dept 2009], affd 16 NY3d 864 [2011]; Penal Law § 10.00 [10]). The jury could have reasonably inferred that defendant intended to permanently deprive the victim, a cab driver, of the cab, as well as the money and phones inside the cab, when defendant drove away in it ( see Penal Law § 155.00 [3]), even though he abandoned it a short time later ( see People v Peterson , 193 AD3d 431 , 432 [1st Dept 2021], lv denied 37 NY3d 959 [2021]). The testimony of the DNA analyst did not violate defendant's right of confrontation. \"The analyst's testimony demonstrated [his] own 'independent analysis o[f] the raw data' to make the comparison, and the analysis was not merely 'a conduit for the conclusions of others' \" ( People v Lawrence , 198 AD3d 493 , 494 [1st Dept 2021], lv denied 37 NY3d 1147 [2021], quoting People v John , 27 NY3d 294 , 315 [2016]; see People v Jordan , 40 NY3d 396 [2023]). Defendant did not preserve his challenge to the court's interested witness charge, and we decline to review it in the interest of justice. As an alternative holding, we find that the charge, which followed the Criminal Jury Instructions, was not constitutionally deficient ( see People v Roby , 217 AD3d 505 , 507 [1st Dept 2023], lv denied 40 NY3d 952 [2023]; People v Blake , 39 AD3d 402 , 403 [1st Dept 2007], lv denied 9 NY3d 873 [2007]). We perceive no basis for reducing the sentence. Concur—Kern, J.P., Friedman, Kapnick, Gesmer, Rodriguez, JJ."
},
{
"from": "gpt",
"value": "Testimony of DNA analyst did not violate defendant's right of\nconfrontation as it demonstrated independent analysis of the raw data for\nmaking the comparison, not merely a conduit for the conclusions of others."
}
]
|
2024.06169 | [
{
"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 Jackson 2024 NY Slip Op 06169 [233 AD3d 495] December 10, 2024 Appellate Division, First 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 Tommy Jackson, Appellant. Caprice R. Jenerson, Office of Appellate Defender, New York (Ronald Zapata of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Sarah Lubin of counsel), for respondent. Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered December 2, 2021, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a term of 4 1/2 years, unanimously affirmed. Defendant's argument that the hearing court violated his right to a fair trial by acting as an advocate for the prosecution ( see People v Arnold , 98 NY2d 63 [2002]) is unpreserved and we decline to consider it in the interest of justice ( see People v Guadalupe , 254 AD2d 69 [1st Dept 1998], lv denied 92 NY2d 982 [1998]). As an alternative holding, we find that the two questions the court asked, which elicited the name of the 911 caller to whom the arresting officer spoke, did not improperly intrude on the prosecutor's function ( see People v Mack , 181 AD3d 427 , 428 [1st Dept 2020], lv denied 35 NY3d 1028 [2020]) and provides no basis to disturb the court's findings that the arresting officers had reasonable suspicion to stop and frisk defendant, and probable cause to arrest him. We perceive no basis for reducing defendant's sentence. We have considered defendants remaining contentions and find them unavailing. Concur—Renwick, P.J., Friedman, Shulman, Pitt-Burke, Rosado, JJ."
},
{
"from": "gpt",
"value": "Claim that judge acted \"as an advocate for the prosecution\" was both\nunpreserved and without merit. Judge asked just 2 questions eliciting the\nname of the caller to whom the arresting offier-witness had spoken.\nQuestions \"did not improperly intrude on the prosecutor's function..., and\nprovide no basis to disturb the court's findings that the arresting officers\nhad reasonable suspicion to stop and frisk defendant, and probable cause\nto arrest him.\n\""
}
]
|
2024.05176 | [
{
"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 Dixon 2024 NY Slip Op 05176 [42 NY3d 609] October 22, 2024 Troutman, J. Court of Appeals 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 Kerbet Dixon, Appellant. Argued September 10, 2024; decided October 22, 2024 People v Dixon , 211 AD3d 1030 , affirmed. {**42 NY3d at 612} OPINION OF THE COURT Troutman, J. The primary issue before us is whether this pro se defendant was denied his constitutional right to present a defense by the People's monitoring of the telephone calls that he made to his trial witnesses from jail. Under the unique circumstances of this case, we hold that defendant's constitutional right to present a defense was not violated. Because that contention and defendant's remaining contentions do not require reversal or modification, we affirm. I. In 2011, \"A.M.\" and \"J.H.,\" two children under 11 years old, accused defendant of repeatedly sexually assaulting them between 2007 and 2009, and a third complainant, \"D.M.,\" accused defendant of raping her during that same period when she was under the age of 17. After one of the complainants disclosed that defendant had video-recorded the assaults and shown her child pornography during the course of the assaults, {**42 NY3d at 613} the police obtained a search warrant and seized defendant's home computers. Forensic examination of the computers revealed hundreds of images of child pornography and an encrypted, 10-gigabyte \"TrueCrypt\" container that the police were unable to access, even with the assistance of the Secret Service, FBI, and Department of Homeland Security. [FN1] The examination further [*2] revealed that Google alerts on one of the computers had been set for specific search terms eerily similar to aspects of the assaults. Proceedings commenced in March 2012 by the filing of an indictment charging defendant with, inter alia, one count of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) pertaining to the conduct against A.M., another count of course of sexual conduct against a child in the first degree ( see id .) pertaining to the conduct against J.H., two counts of rape in the third degree ( id. § 130.25) pertaining to the conduct against D.M., and 150 counts each of promoting and possessing a sexual performance by a child ( id. §§ 263.15, 263.16). Defendant posted bail and was released. After defendant unsuccessfully sought to sever the child pornography counts from the sexual assault counts pursuant to CPL 200.20, a second indictment charged him with an additional 334 counts of possessing a sexual performance by a child (Penal Law § 263.16). Upon the People's unopposed application, Supreme Court joined the second indictment for trial with the first. The court assigned counsel, as well as a computer expert and an investigator to assist the defense. Defendant eventually became dissatisfied with his assigned counsel, as he had with two prior attorneys, and, in July 2013, the court granted defendant's request to proceed pro se and continued defense counsel's assignment in the role of a \"legal advisor.\" The trial commenced in late January 2014. The People's first few witnesses included A.M. and J.H, who were ages 11 and 13 at the time of trial. At one point during trial, on a Thursday, the court decided to take an extended lunch recess to give the People's next witness time to arrive from out of state. Defendant asked who that witness would be. The court asked the {**42 NY3d at 614} prosecutor if there were any concerns about witness intimidation. The prosecutor said that there were no such concerns and disclosed that the next witness would be D.M. After the recess, the court stated that D.M.'s arrival had been delayed and adjourned for the day. On Friday morning, the prosecutor brought the court's attention to a blog posted to the Internet Thursday evening from an IP address associated with the residence of defendant's sister, where defendant was living during trial. The blog made sexually disparaging comments about D.M., identified her by name as a complainant in a sex crime case, and included a picture of her in underwear. The prosecutor said that the picture was one that defendant had previously disclosed to the People. Defendant stated that he did not post the blog but knew who did. The prosecutor asked the court to remand defendant to jail, stating that the complainant was \"devastated\" and \"in tears . . . waiting to be called to testify.\" The prosecutor added that defendant's actions \"had the chilling effect\" that defendant intended. The court concluded that defendant either posted the blog himself, or assisted the person who posted it, in violation of Civil Rights Law § 50-b. As a result, the court ordered defendant to be remanded. On Monday morning, defendant protested that it was difficult to prepare his witnesses for trial because he was in jail with no access to his files or witnesses, and he moved for a mistrial. The court stated that defendant had the assistance of his family and his legal advisor. The prosecutor added that defendant had been afforded not only a legal advisor but an investigator and a computer expert to assist him with preparation of his defense, at public expense. The People later called as a witness the detective and computer crimes specialist who conducted the forensic examination of defendant's computers, and he testified to the existence of the encrypted, 10-gigabyte TrueCrypt container that was installed on one of the computers, among other findings. After the testimony of two more witnesses, the People rested. Defendant's first witness was his daughter; the court gave defendant the opportunity to speak to her alone in the courtroom before she testified. It became apparent during the testimony that defendant intended to introduce in evidence a recorded conversation between his daughter and A.M., in which A.M. allegedly recanted her accusations. Although the daughter recorded the conversation two years earlier, the defense {**42 NY3d at 615} never disclosed the recording to the People, with the defendant insisting that he had just become aware of the recording himself. During voir dire, the daughter testified that she simply asked A.M. questions and told her to be honest. The daughter admitted, however, that she \"had to record it a couple of times\" and delete portions of it because A.M. was not answering the questions out loud at first. Though the court was \"sure\" that defendant was aware of the existence of the recording and that defendant's tactic was an \"ambush,\" the court permitted the recording to be played for the jury. On cross-examination, the People asked the daughter about a phone conversation she had with the incarcerated defendant the week before. The daughter admitted, based on the contents of that conversation, that defendant was not only familiar with TrueCrypt but also that he gave her the password for it over the phone. The daughter further testified that defendant told her to come visit him in jail so that he could \"grill\" her before she [*3] testified. When the People sought to refresh the daughter's recollection about further details of the call, defendant agreed to allow the call to be played outside of the jury's presence and stipulated to the contents of the call. The People were permitted to call A.M. out of order to testify in rebuttal about the circumstances of her alleged recantation. She testified that, two years earlier (when she was nine years old) defendant's daughter drove her to Toys \"R\" Us to pick out toys for her Christmas list. While parked outside the store, the daughter questioned A.M. about her accusations against defendant. When A.M. gave the \"[w]rong\" answers, the daughter instructed A.M. to say \"no\" when the daughter shook her head and \"yes\" when the daughter nodded. A.M. testified that her statements on the recording were false and that her trial testimony was true. The defense case proceeded, with defendant at one point protesting that it was difficult to prepare his witness with the prosecutor listening to his calls. The court stated that when defendant wanted to speak to his witnesses, the court made the prosecutors leave the courtroom. Defendant protested that he still did not have enough time to prepare. The court responded that the case had \"gone on for years\": \"You've had years to prepare the case.\" Defendant asked to adjourn for the weekend so he could have more time to prepare his witnesses. The court denied the request but noted that there was only one more day of scheduled testimony before the weekend and stated that it {**42 NY3d at 616} would revisit the matter the next morning. The next day, it was agreed that defendant would testify in his own defense. Defendant called one character witness to provide brief testimony and spent the rest of the day testifying in narrative fashion. On the morning of the last day of testimony, defendant objected to the People listening to his calls, arguing that it gave the People an \"unfair advantage.\" The court rejected defendant's argument. The jury found defendant guilty of only one felony sexual assault count—course of sexual conduct against a child pertaining to conduct against J.H.—but also found him guilty of all 634 child pornography counts. The jury deadlocked on the count of course of sexual conduct against a child pertaining to A.M. and the counts of rape pertaining to D.M. At sentencing, defendant entered an Alford plea to the deadlocked counts in exchange for concurrent time and the court's promise that it would vacate the plea if the judgment were reversed on appeal. The Appellate Division affirmed the judgments (211 AD3d 1030 [2d Dept 2022]), and a Judge of this Court granted leave to appeal (40 NY3d 933 [2023]). II. \"Criminal defendants must be afforded 'a meaningful opportunity to present a complete defense' \" ( People v Deverow , 38 NY3d 157 , 164 [2022], quoting Crane v Kentucky , 476 US 683, 690 [1986]). That right, which encompasses the right to offer the testimony of witnesses, is \"a fundamental element of due process of law\" ( Washington v Texas , 388 US 14, 19 [1967]; see Deverow , 38 NY3d at 164; US Const Sixth, Fourteenth Amends). Criminal defendants also have a constitutional right to self-representation ( see McKaskle v Wiggins , 465 US 168, 174 [1984]). The right to self-representation exists not only \"to affirm the dignity and autonomy of the accused,\" but also \"to allow the presentation of what may, at least occasionally, be the accused's best possible defense\" ( id. at 176-177; see People v Rosen , 81 NY2d 237, 245 [1993]). To that end, pro se defendants \"must be allowed to control the organization and content of [their] own defense\" and \"must be accorded 'compulsory process for obtaining witnesses in [their] favor' \" ( McKaskle , 465 US at 174, quoting US Const Sixth Amend; see Rosen , 81 NY2d at 244). Thus, an incarcerated pro se defendant has a right to prepare and present a defense no less than any other defendant. {**42 NY3d at 617} In contending that the right to present a defense was violated in this case, defendant posits that the People's \"unfettered access\" to recordings of jail phone calls has the potential to prejudice a pro se defendant and impair his ability to prepare and present a defense, undermining the fairness of the process ( People v Johnson , 27 NY3d 199 , 211 [2016, Pigott, J., concurring]). The opportunity for a lawyer to communicate confidentially with potential witnesses is essential to preparation of a defense, and the same is true for an incarcerated defendant exercising the right to self-representation. Pro se defendants who use jail telephones to prepare their witnesses and discuss trial strategies may not fully appreciate that their conversations may be divulged to the prosecution, which risks placing them at an unfair disadvantage. Even where that possibility is understood, the limited alternative options place many incarcerated pro se defendants in a difficult position: prepare over a recorded phone line or do not prepare at all ( see id. at 211 [Pigott, J., concurring]). [1] Under the particular facts of this case, however, we conclude that defendant's right to present a defense was not impaired by the monitoring of his jail phone calls. Defendant was out on bail for nearly the entire two years between indictment and his mid-trial remand, including more than six months while representing himself, giving him ample time to prepare his witnesses. Even after remand, there is no dispute that defendant had means other than the recorded phone lines to prepare his witnesses. Indeed, the record establishes that defendant's daughter visited him in [*4] jail at his request before he called her to testify so that they could continue their trial preparations in person. The court was proactive in protecting defendant's rights, [FN2] permitting him time in the courtroom to speak to each of his witnesses in private before their testimony. In addition, when defendant asked to adjourn for the weekend {**42 NY3d at 618} to prepare his witnesses, the court stated that it would take the matter up in the morning, at which time it was agreed that defendant would testify for most of the remainder of the week. The court also noted that defendant had been assigned a legal advisor and an investigator, both of whom had the expertise and wherewithal to assist in the preparation of the defense. Although the People's monitoring of an incarcerated pro se defendant's jail phone calls may have a chilling effect on the defendant's trial preparation that threatens the right to present a defense—particularly if the People are able to make use of the information in the calls in the pending trial—the facts here are otherwise. Defendant became aware that the People were listening to his phone conversations only after he had presented the direct testimony of his daughter and an expert. Aside from himself, the only remaining defense witnesses provided character testimony and little else that could be considered relevant to the case. Thus, any chilling effect here was negligible. Under the circumstances of this case, we conclude that there was no violation of defendant's right to present a defense. III. Defendant's remaining contentions are meritless, waived, or unpreserved. Contrary to defendant's contention, the court properly denied his motion to sever the counts in the first indictment charging child pornography offenses from the counts charging sexual assault offenses. Because the offenses were properly joined pursuant to CPL 200.20 (2) (b), \"the court lacked statutory authority to sever\" them ( People v Bongarzone , 69 NY2d 892, 895 [1987]; see CPL 200.20 [3]). [2] We reject defendant's further contention that the court should have denied his request to proceed pro se as equivocal. A request to go pro se is equivocal when it \"does not reflect an affirmative desire for self-representation\" and instead shows that \"self-representation was reserved as a final, conditional resort\" ( Matter of Kathleen K. [Steven K.] , 17 NY3d 380 , 387 [2011]). To be sure, \"conditioning a request for new attorneys with a request for self-representation does not necessarily make the latter request equivocal\" ( People v LaValle , 3 NY3d 88 , 107 [2004]), but it can become equivocal where a \"defendant raised the argument for self-representation as a way of obtaining the dismissal of his . . . assigned counsel\" ( People v Gillian , 8 NY3d 85 , 88 [2006]). Here, although defendant {**42 NY3d at 619} initially made his request to proceed pro se as an alternative to his request for substitute counsel, defendant later told the court that he had spoken to his family and decided that self-representation was \"the best way to go.\" Before conducting the requisite searching inquiry, the court invited defendant to make another argument for substitute counsel, but defendant declined to do so, explaining that he was \"satisfied to go pro se.\" Moreover, even after granting defendant's request to proceed pro se, the court left the door open for defendant to make an argument for the appointment of a new attorney, and thereafter defendant \"never said a word about wanting\" one ( LaValle , 3 NY3d at 107). Under these circumstances, where defendant explicitly declined the opportunity to argue for a new attorney, defendant's request was unequivocal. Defendant next contends that the court failed to conduct a \"searching inquiry\" as required to apprise him of the dangers and pitfalls of self-representation inasmuch as the court failed to ensure that he was aware of the nature of the charges and range of possible sentences that may result from conviction. We reject that contention as well ( see People v Blue , — NY3d — [2024]). The record and defendant's own statements indicate that he worked as a court officer for 21 years, had been involved in prior sexual abuse cases, and was aware that he risked [*5] serving the rest of his natural life in prison if convicted. Indeed, defendant mentioned twice during the searching inquiry that his \"life\" was at stake. Defendant waived any challenge to the use of a recorded jail telephone call during cross-examination of his daughter because he agreed to allow the recording to be played and stipulated to its contents ( see People v Santos-Sosa , 233 AD2d 833, 833 [4th Dept 1996], lv denied 89 NY2d 988 [1997]). Defendant's remaining contentions, including his challenge to the People's introduction of an inflammatory bestiality video, are unpreserved. Accordingly, the order of the Appellate Division should be affirmed. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Halligan concur. Order affirmed. Footnotes Footnote 1: According to the trial testimony of the detective and computer crimes specialist who conducted the forensic examination, TrueCrypt is software that allows users to encrypt files and create containers, like folders, where encrypted files can be stored and accessed only by a person who knows the password. Footnote 2: Though unrelated to the monitoring of the calls, we note that another of the court's rulings demonstrates that the court was mindful of defendant's right to present a defense. When defendant sought to introduce a previously undisclosed, years-old, edited recording of a complainant's ostensible recantation, the court permitted the recording to be played for the jury, a ruling consistent with the goal of protecting defendant's right to present a defense ( see People v Cerda , 40 NY3d 369 , 378 [2023] [concluding that exclusion of exculpatory forensic evidence violated right to present defense]; People v Spencer , 20 NY3d 954 , 956 [2012] [concluding that court should have permitted defendant to present evidence in his defense of officer's motive to frame him for the crime]). "
},
{
"from": "gpt",
"value": "Under the circumstances of this particular case, the People's monitoring of\nphone calls that pro se defendant made from jail to his witnesses did not\nviolate the defendant's constitutional right to present a defense."
}
]
|
2024.00915 | [
{
"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 James 2024 NY Slip Op 00915 [224 AD3d 849] February 21, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 3, 2024 [*1] The People of the State of New York, Respondent, v Fermin James, Appellant. Samuel Coe, White Plains, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Shea Scanlon Lomma and Raffaelina Gianfrancesco of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Westchester County (Robert A. Neary, J.), rendered November 19, 2021, convicting him of course of sexual conduct against a child in the second degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. Ordered that the judgment is affirmed. The defendant was convicted of course of sexual conduct against a child in the second degree and endangering the welfare of a child, after a jury trial, at which the complainant testified. The County Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. \" Miranda warnings are required only when a suspect is subjected to custodial interrogation, which, by definition, entails both custody and interrogation\" ( People v Lowe , 189 AD3d 1461 , 1462 [2020] [internal quotation marks omitted]; see People v Paulman , 5 NY3d 122 , 129 [2005]). \"Whether an individual is in custody is generally a question of fact which does not depend on the subjective beliefs of the defendant or the subjective intent of the police officers\" ( People v Ramjattan , 219 AD3d 1348 , 1349 [2023]; see People v Lowe , 189 AD3d at 1462). Rather, \"[t]he standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave\" ( People v Paulman , 5 NY3d at 129; see People v Ramjattan , 219 AD3d at 1349). Here, the evidence adduced at the suppression hearing established that the defendant voluntarily went to the police station, and although he had the option to drive himself, the defendant requested to ride in the police detective's vehicle. During the interview, the defendant was not placed in handcuffs, and the detective's questions were neither accusatory nor coercive. Therefore, the evidence at the suppression hearing supported the County Court's conclusion that the statements made by the defendant were not the product of a custodial interrogation ( see People v Paulman , 5 NY3d at 129; People v Ramjattan , 219 AD3d at 1349). Contrary to the defendant's contention, the County Court providently exercised its discretion in allowing the jury to utilize a transcript while the recording of the defendant's [*2] videotaped statement was played and properly instructed the jury that the transcript was merely an aid and not evidence, and that to the extent there was any discrepancy between the recording and the transcript, the recording controlled ( see People v Lubow , 29 NY2d 58, 68 [1971]; People v Hendricks , 161 AD3d 892 , 892 [2018]; People v Wilson , 207 AD2d 463, 464 [1994]). The County Court also providently exercised its discretion in denying, as untimely, the defendant's application for a missing witness charge based on the People's failure to call the complainant's father as a witness ( see People v Carr , 14 NY3d 808 , 809 [2010]). Moreover, any testimony by the complainant's father regarding the exact hours or days he worked was not material to any element of the crimes charged, was cumulative of the testimony of the complainant and the complaint's mother, and defense counsel was permitted to comment during summation on the People's failure to call the father as a witness ( see People v Williams , 5 NY3d 732 , 734 [2005]; People v Morris , 207 AD3d 477 , 478 [2022]; People v Johnson , 139 AD3d 967 , 974 [2016], affd 31 NY3d 942 [2018]). Viewing the record as a whole, the defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation ( see People v Benevento , 91 NY2d 708, 713 [1998]; People v Baldi , 54 NY2d 137 [1981]). The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 [1982]). The defendant's remaining contention is without merit. Connolly, J.P., Miller, Dowling and Landicino, JJ., concur."
},
{
"from": "gpt",
"value": "Miranda warnings were not required when defendant went voluntarily to\nthe police station in a police vehicle to be interviewed."
}
]
|
2024.04495 | [
{
"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 Baldner 2024 NY Slip Op 04495 [230 AD3d 1434] September 19, 2024 Appellate Division, Third 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, Appellant, v Christopher Baldner, Respondent. Letitia James, Attorney General, New York City (Matthew B. Keller of counsel), for appellant. Larkin Ingrassia LLP, Newburgh (John Ingrassia of counsel), for respondent. Aarons, J. Appeal from an order of the County Court of Ulster County (Bryan E. Rounds, J.), entered February 2, 2023, which, among other things, partially granted defendant's motion to dismiss the indictment. On two separate occasions—once in September 2019 and once in December 2020—defendant, an on-duty state trooper, engaged in high-speed chases with vehicles traveling on Interstate 87 (hereinafter the Thruway) in Ulster County. Both chases ended when defendant collided with the vehicles from behind, forcing them off the road. One of those vehicles flipped over and landed upside down, and a passenger inside the vehicle died. She was 11 years old. The Attorney General commenced an investigation, culminating in an indictment charging defendant with one count of murder in the second degree (depraved indifference murder), one count of manslaughter in the second degree and six counts of reckless endangerment in the first degree. Defendant filed an omnibus motion contending, as relevant here, that the evidence before the grand jury was not legally sufficient to establish that defendant acted with depraved indifference to human life as required by the crimes of depraved indifference murder and first-degree reckless endangerment. County Court agreed and dismissed the count of depraved indifference murder and reduced the counts of first-degree reckless endangerment to reckless endangerment in the second degree. The People appeal. Depraved indifference is a culpable mental state that is \"best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply does not care whether grievous harm results or not\" ( People v Williams , 206 AD3d 1282 , 1284 [3d Dept 2022] [internal quotation marks, brackets and citations omitted]; see People v Huntington , 57 AD3d 1238 , 1239 [3d Dept 2008]). \"A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person\" (Penal Law § 120.25). A person is guilty of depraved indifference murder if, by that same conduct, the person \"causes the death of another person\" (Penal Law § 125.25 [2]). Thus, depraved indifference is an essential element of both crimes that \"has meaning independent of recklessness and the gravity of the risk created\" ( People v Maldonado , 24 NY3d 48 , 53 [2014] [internal quotation marks and citation omitted]; see Penal Law §§ 120.25, 125.25 [2]; People v Lewie , 17 NY3d 348 , 359 [2011]; People v Feingold , 7 NY3d 288 , 294-295 [2006]; see also Penal Law § 15.05 [3]). Depraved indifference requires a \"highly fact-specific\" inquiry ( People v Heidgen , 22 NY3d 259 , 276 [2013]), and, in assessing the legal sufficiency of evidence before the grand jury, \"[o]ur task is limited to assessing whether the facts, if proven, and the inferences that logically flow from those facts supply proof of [*2] every element of the charged crimes\" ( People v Reid , 185 AD3d 1163 , 1165 [3d Dept 2020] [internal quotation marks and citations omitted]). Critically, the \"reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury\" ( People v Edwards , 36 NY3d 946 , 947 [2020] [internal quotation marks and citations omitted]; accord People v Hart , 221 AD3d 1192 , 1193 [3d Dept 2023]). \"In the context of grand jury proceedings, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt\" ( People v Park , 163 AD3d 1060 , 1061 [3d Dept 2018] [internal quotation marks and citations omitted]; see CPL 70.10 [1]). The grand jury heard that, in September 2019, defendant \"came out of the woods like the Dukes of Hazard\" in his State Police vehicle, sirens activated, when he observed a minivan speeding at 80 miles per hour. Jonathan Muthu, the minivan's driver, testified that there were two passengers with him—a friend who had travelled with him from New York City to the Albany area earlier that morning and an acquaintance Muthu agreed to transport from Albany back to New York City. Muthu admitted that he fled the ensuing traffic stop because he had marihuana in the minivan, and accelerated to 70 to 80 miles per hour while \"trying to go around cars.\" After Muthu failed to pull over again, defendant hit the rear of the minivan with his State Police vehicle while the minivan was traveling at \"highway speed.\" The collision caused the minivan to spin 180 degrees, leave the roadway and hit the guardrail in the median. Defendant then crashed his State Police vehicle head-on into the front of the stationary minivan with Muthu and his two passengers still inside. The minivan was totaled, Muthu said, and the State Police vehicle appeared to sustain heavy damage too. Defendant then pointed his gun at Muthu and the two passengers and ordered them outside to lie on the ground, repeatedly asking whether they had weapons or drugs but never whether anyone was hurt. Muthu also testified to defendant's statements to him after he was taken into custody. As recounted by Muthu, defendant said he was \"lucky\" that the \"pit maneuver\" succeeded in stopping the minivan, because otherwise defendant would have had tire spikes thrown onto the Thruway. Further, defendant told Muthu there is \"only one way in and one way out\" of the Thruway and wondered, \"Where did you think you were going to go?\" By contrast, defendant's contemporaneous memorandum concerning the 2019 incident indicates the minivan had been traveling at 90 miles per hour before the attempted traffic stop, and then was \"weaving in and out of traffic[,] slowing and speeding up to speeds over 100 mph.\" According to that memorandum and testimony from defendant's shift supervisor, defendant reported that the minivan initiated contact with the passenger side of defendant's State Police vehicle [*3] , causing the minivan to lose control and crash into the median guardrail. Defendant further reported that he positioned his State Police vehicle in front of the minivan after it hit the guardrail, and the minivan drove into the front end of defendant's vehicle attempting to flee again. The evidence of the December 2020 incident follows a similar pattern. The grand jury heard from witnesses that, around 11:40 p.m., defendant was \"see[ing] if he could get one last ticket\" before meeting his partner when he stopped an SUV for speeding. The SUV pulled over, and, as told by Tristin Goods, who was driving the SUV, along with Goods' wife, who was seated in the front passenger seat, defendant began the traffic stop by angrily and profanely accusing Goods of traveling over 100 miles per hour. An argument between defendant and Goods ensued in front of Goods' wife and two children, who tried to calm him. Witnesses testified that, after defendant stepped away upon Goods' request to summon a supervisor, defendant returned and, without warning or provocation, pepper-sprayed the passenger cabin of the SUV, and Goods' wife and two children began screaming in pain. Goods, who had shielded his eyes from the spray, fled the traffic stop; in the commotion, defendant's pepper spray canister ended up inside the passenger cabin of the SUV. Defendant radioed that the SUV was \"taking off\" with his pepper spray. According to the grand jury record, defendant pursued and caught up to the SUV and, without activating his siren, intentionally rammed the back of the SUV at 130 miles per hour. Defendant radioed dispatch, however, that the SUV had \"just f . . . ing rammed me.\" The collision caused the SUV to fishtail, and pieces of it fell onto the road. The SUV continued on, so defendant intentionally rammed the back of the SUV again, this time at 100 miles per hour. Defendant radioed dispatch that the SUV \"rammed me again.\" The second collision caused Goods to lose control of the SUV, and the SUV flipped over, coming to a stop upside down in the grass next to the Thruway with Goods, his wife and two children inside. Defendant, seeing this, radioed that a car was overturned. [FN1] Testimony established that defendant drew his gun, instructed the occupants of the SUV to put their hands out of the windows and asked repeatedly whether they possessed weapons or drugs. Defendant did not inquire if anyone inside was injured in the crash and, when Goods' 11-year-old child could not be located, defendant did not assist him in looking for her. According to Goods, who had sustained arm, hand and head injuries, defendant \"did not care.\" The child was later found pinned inside the wreck of the SUV, having already died from severe injuries sustained in the accident. Meanwhile, as emergency responders engaged in recovery efforts, testimony and video evidence revealed that defendant searched for and found his pepper spray can. According to another trooper at the scene who asked defendant how he was [*4] doing, defendant said he felt \"fine\" except for the pepper spray that had blown back on him when it was discharged. Defendant reported to a State Police sergeant that both collisions were initiated by the SUV, including the second one, which caused the SUV to lose control and crash. Although \"the mens rea of depraved indifference will rarely be established by risky behavior alone\" ( People v Maldonado , 24 NY3d at 53), intentionally colliding with occupied vehicles traveling 70 to 100 miles per hour comes close ( see People v Williams , 162 AD3d 694 , 696-697 [2d Dept 2018], lv denied 32 NY3d 942 [2018], cert denied 586 US &mdash, 139 S Ct 847 [2019]; People v Garrow , 75 AD3d 849 , 851 [3d Dept 2010]; see also People v Heidgen , 22 NY3d at 277; cf. People v Herrera , 202 AD3d 517 , 518 [1st Dept 2022], lv denied 38 NY3d 1134 [2022]). Viewed in the light most favorable to the People ( see People v Edwards , 36 NY3d at 947), the grand jury could rely on testimony and evidence indicating that, after both incidents, \"defendant exhibited no signs of remorse for the results of his recklessness\" as proof that he hit the minivan in 2019 and the SUV in 2020 with an utter disregard for the value of the human lives within them ( People v Williams , 162 AD3d at 697; see People v Williams , 206 AD3d at 1284, 1288; People v Nelligan , 135 AD3d 1075 , 1078 [3d Dept 2016], lv denied 27 NY3d 1072 [2016]; see also People v Barboni , 21 NY3d 393 , 402 [2013]). As to the 2019 incident, the grand jury could infer that defendant—aware that the minivan could not have evaded him given the Thruway's one-way-in, one-way-out design—\"simply [did not] care whether grievous harm result[ed]\" from colliding with the occupied minivan from behind given testimony that defendant's very next act was to crash into it again from the front, later expressing that Muthu was lucky the so-called pit maneuver worked ( People v Williams , 206 AD3d at 1284 [internal quotation marks and citations omitted]; see People v Suarez , 6 NY3d 202 , 214 [2005]). Similarly, as to the 2020 incident, the grand jury could infer that defendant saw the SUV falling apart all over the road after he rammed it the first time at 130 miles per hour, permitting the grand jury to find that defendant—aware that the SUV still contained a family of four, including two children, all of whom he had just pepper-sprayed—was callously indifferent to the predictably tragic consequences of ramming it a second time at 100 miles per hour ( see People v Wilson , 32 NY3d 1 , 7 [2018]; People v Barboni , 21 NY3d at 403-404). Additionally, State Police witnesses testified that, even though vehicle contact is listed in the agency's pursuit manual, it is an \"extreme measure\" that troopers are not trained to do. As a result, witnesses told the grand jury, the tactic should only be employed with supervisor approval—which the evidence showed defendant never obtained—or in \"extraordinary\" or \"life-threatening\" circumstances—which the grand jury could [*5] find did not exist. [FN2] Remaining mindful that \"[t]rying to cover up a crime does not prove indifference to it\" ( People v Lewie , 17 NY3d at 360), in our view, proof tending to show that defendant was avoiding supervisory scrutiny and fabricating a record in real time to justify the brutal act of intentionally crashing his State Police vehicle into two occupied civilian vehicles at high speed supports an inference that he did so because of wanton cruelty and a contemptuous disregard for whether the occupants of those vehicles lived or died ( cf. People v Williams , 150 AD3d 1273 , 1278 [2d Dept 2017], lv denied 29 NY3d 1135 [2017]; compare People v Lewie , 17 NY3d at 359-360). Although innocent inferences could also be drawn from the evidence presented, the People's proof was legally sufficient to support the grand jury's finding that defendant exhibited depraved indifference toward the occupants of the minivan and SUV ( see People v Edwards , 182 AD3d 929 , 931 [3d Dept 2020], affd 36 NY3d 946 [2020]; People v Williams , 162 AD3d at 697). Defendant nevertheless contends that he cannot have acted with depraved indifference because, in the context of federal civil rights lawsuits, police officers were held not liable because their injury-causing collisions with fleeing vehicles were found objectively reasonable under the circumstances ( see Scott v Harris , 550 US 372, 383-384 [2007]; Christiansen v Eral , 52 F4th 377, 380 [8th Cir 2022]; Pasco ex rel. Pasco v Knoblauch , 566 F3d 572, 581 [5th Cir 2009]; Sharp v Fisher , 532 F3d 1180, 1184 [11th Cir 2008]; Abney v Coe , 493 F3d 412, 418 [4th Cir 2007]). This point misses the mark, as \"it is not the circumstances under which the [criminal conduct] occurred that determines whether defendant is guilty of depraved indifference [crimes], but rather defendant's mental state at the time the crime[s] occurred\" ( People v Jean-Baptiste , 11 NY3d 539 , 542 [2008]; see People v Prindle , 16 NY3d 768 , 770 [2011]; People v Feingold , 7 NY3d at 294-295). In a similar vein, the dissent's conclusion that defendant cannot be charged with depraved indifference crimes because he was trying to protect the public from dangerous high-speed chases flows from a misapplication of the standard of review. To summarize the relevant grand jury evidence, Muthu testified that he was trying to avoid other vehicles during the chase and was going 70 to 80 miles per hour in the correct direction on the Thruway. Goods was pulled over close to midnight, suggesting there were few other cars on the Thruway when he sped away after defendant allegedly pepper-sprayed his wife and two children for no reason. In neither chase did defendant report that other drivers were endangered or request permission to initiate vehicle contact despite having the opportunity and mandate to do so. Indeed, the record fairly implies defendant concealed or falsely reported the details of both chases as they occurred and in their immediate aftermaths. Accordingly, the grand jury could [*6] reject the dissent's view that defendant acted out of concern for the public. Rather, the finding permitted when the evidence is viewed in the light that most favors the People—which is the finding that we must credit in this posture ( see People v Edwards , 36 NY3d at 947; People v Hart , 221 AD3d at 1193)—is that defendant decided to end both pursuits with perilous, unsanctioned high-speed collisions while possessed of a \"wickedness, evil or inhumanity\" directed at two defiant drivers and the friends and family who happened to be with them ( People v Suarez , 6 NY3d at 214; see People v Williams , 162 AD3d at 696-697 [a defendant who chased potential victim at high speed and fired a gun at her vehicle, causing her to lose control of the vehicle and crash, exhibited depraved indifference]). Evidence that defendant braked during the 2020 incident an instant before striking the SUV the second time does not compel dismissal of the depraved indifference murder count and reduction of the relevant reckless endangerment counts. The People's expert opined that, according to the data retrieved from the State Police vehicle, defendant was traveling alongside the SUV when he applied the brake, rapidly slowing from 114 to 100 miles per hour, which the expert characterized as an \"emergency\" or \"hard\" brake. The expert also testified that, around the same time, defendant turned his vehicle toward the SUV, which was inconsistent with an avoidance maneuver ( see People v Edwards , 182 AD3d at 930). Given this context, the grand jury reasonably understood the expert to mean that defendant braked in order to position his State Police vehicle to intentionally ram the SUV ( compare People v Williams , 206 AD3d at 1288-1289). With respect to the 2019 incident, defendant asserts that we should affirm reduction of the relevant counts because the evidence was not legally sufficient to prove he \"creat[ed] a grave risk of death\" to Muthu and his two passengers (Penal Law § 120.25). County Court appears to have agreed because it concluded that defendant \"ignored—and created—multiple perils that presented, at a minimum, a grave risk of physical danger to\" the three occupants of the minivan, which would support a charge of second-degree reckless endangerment ( see Penal Law § 120.20). Without belaboring the point, the evidence before the grand jury indicating that defendant intentionally collided with an occupied minivan traveling at \"highway speed,\" spinning it 180 degrees and sending it off the road, across a median and into a guardrail, is legally sufficient to sustain the counts of the indictment charging defendant with first-degree reckless endangerment ( see Penal Law § 120.25; People v Garrow , 75 AD3d at 851). The People's remaining contentions are academic. Fisher, McShan and Mackey, JJ., concur. Egan Jr., J.P. (dissenting). I am mindful that an 11-year-old child, Monica Goods, tragically lost her life on the evening of December 22, 2020, when the vehicle in which [*7] she was a back seat passenger was involved in a high-speed pursuit and collision with a State Police vehicle operated by defendant. Because I believe that County Court correctly modified the indictment by dismissing and reducing portions of it, I respectfully dissent. With this preface, the grand jury heard evidence indicating that, on separate occasions in September 2019 and December 2020, defendant, a state trooper, disregarded State Police procedures in pursuing vehicles on the Thruway after their drivers fled attempted traffic stops. He then made contact with the vehicles in the rear bumper in an apparent effort to end the chases. State Police protocols did not authorize defendant to make contact with the vehicles absent a supervisor's approval—which he did not have—and the evidence reflected that such a maneuver was generally only executed at low to moderate speeds given the risk of injury to the occupants of the vehicle that was being pursued. Viewing that evidence in the light most favorable to the People, the grand jury could readily conclude that defendant acted recklessly in both incidents by executing unauthorized maneuvers to end the chases and placing the occupants of the vehicles he was pursuing at risk of death, and it could therefore hand up an indictment charging offenses requiring that state of mind. That said, all high-speed chases involve \"driv[ing] in what is generally considered a reckless manner,\" as the drivers \"violate accepted rules of the road\" and, in so doing, create \"the potential for grave injuries and fatalities\" for both themselves and innocent bystanders ( People v Maldonado , 24 NY3d 48 , 57-58 [2014]). \"[R]eckless driving does not, on its own, establish the . . . mens rea of depraved indifference\" ( id. at 55). More was required and, as I agree with County Court that the People failed to present proof to the grand jury establishing it, the court properly dismissed and/or reduced the charges in the indictment requiring a showing of depraved indifference. Depraved indifference is not merely the \"conscious disregard of a known risk\" of death or injury that constitutes recklessness ( People v Lewie , 17 NY3d 348 , 358 [2011]); it \"is something even worse\" ( id. at 359). Depraved indifference is \"a culpable mental state . . . [that] is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply [does not] care whether grievous harm results or not\" ( People v Heidgen , 22 NY3d 259 , 274 [2013] [internal quotation marks and citations omitted]; see People v Edwards , 36 NY3d 946 , 947 [2020]; People v Maldonado , 24 NY3d at 52-53; People v Williams , 206 AD3d 1282 , 1284 [3d Dept 2022]). \"In other words, a person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life—that person does not care how the risk turns out\" and will shed no tears if the risk is realized and others end up injured or dead ( People [*8] v Lewie , 17 NY3d at 359). It is an exceptionally rare situation where someone exhibits such a callous disregard for others, and those cases involve \"wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, . . . conduct . . . so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill\" ( People v Suarez , 6 NY3d 202 , 214 [2005] [internal quotation marks and citation omitted]; see People v Williams , 206 AD3d at 1284). The proof before the grand jury reflected that defendant had valid grounds for stopping the vehicles involved in both the September 2019 and December 2020 incidents, both of which he had observed traveling well over the posted speed limit, and that the ensuing chases would not have occurred had the drivers of the other vehicles simply seen a routine traffic stop through to its conclusion. The September 2019 incident involved the driver of a Dodge Grand Caravan who initially stopped but, after defendant got out of his troop car and began to approach, fled out of concern that defendant would discover the marihuana in the vehicle. The driver accelerated over the speed limit to 70 or 80 miles per hour and defendant, who had gotten back into his troop car, caught up. After the driver had been \"trying to go around cars\" in an unspecified fashion, defendant made contact with the Grand Caravan, causing it to run into the guardrail and come to a stop. Defendant then drove into the front bumper of the Grand Caravan as it came to rest on the side of the road, presumably to prevent the driver from trying to flee again, and ordered everyone out of the vehicle at gunpoint and directed them to lay face down on the grass so that he could check the vehicle. Defendant later told the driver that he was \"lucky\" that the maneuver worked, because defendant would have had tire spikes thrown across the road to bring the chase to a conclusion if it had not. As for the December 2020 incident, defendant stopped a Dodge Journey for speeding, and the driver of that vehicle pulled over and admittedly engaged in a verbal confrontation with defendant. The driver eventually demanded to speak to defendant's supervisor, at which point defendant walked back to his troop car. When he returned, he asked if the driver even had a driver's license. The driver declined to reply, but the driver's wife said that he did. The testimony reflected that defendant then pepper sprayed the driver and the other occupants of the Journey. At that point, the driver took off and accelerated to what the evidence reflected was 110 miles per hour. Defendant gave chase and accelerated to approximately 130 miles per hour in order to catch up with the vehicle. He then made contact with the rear of the Journey twice, causing the vehicle to spin off the road, flip over and land on its roof. Defendant approached the Journey with [*9] his gun drawn, directed the occupants to remain inside and demanded to know if there were any weapons or drugs in the vehicle. He did not ask if the occupants were all right or assist them, but there was also no question that defendant was in contact with dispatch throughout the chase and that someone summoned medical assistance that arrived within a few minutes. In my view, the foregoing evidence, if accepted as true, reflects that defendant was doing his job in a reckless and undisciplined fashion during the September 2019 and December 2020 incidents. It does not permit the conclusion that defendant evinced an utter disregard for human life in either. Defendant made justified traffic stops in September 2019 and December 2020, attempting to pull over drivers who were going over the speed limit and, in so doing, placing themselves and other motorists on the road in danger. Regardless of whether defendant's use of pepper spray to subdue an admittedly argumentative driver in the December 2020 incident was justified, the use of a nonlethal chemical spray does not suggest the \"utter disregard for the value of human life\" required for depraved indifference ( People v Heidgen , 22 NY3d at 274 [internal quotation marks and citations omitted]). Defendant pursued both drivers at high speed, but there is no indication that such was due to anything other than the decision of the drivers themselves to travel at a high rate of speed. Moreover, while defendant's decision to make contact with the vehicles to end both chases may well have been reckless and in violation of State Police procedures, a reckless effort to protect the public by stopping a dangerous chase can in no way be compared to the decision of a driver to continue one and behave in such a manner as to place the public at risk ( see e.g. People v Heidgen , 22 NY3d at 277 [defendant engaging in \"a high speed game of chicken\" on road exhibited depraved indifference to human life]; People v Herrera , 202 AD3d 517 , 517-518 [1st Dept 2022], lv denied 38 NY3d 1134 [2022] [defendant recklessly driving in wrong lane of traffic while fleeing police exhibited depraved indifference]; People v Williams , 162 AD3d 694 , 696-697 [2d Dept 2018], lv denied 10 NY3d 940 [2008] [drug dealer who chased potential victim at high speed and fired a gun at her vehicle exhibited depraved indifference]). Attempting to end a dangerous high-speed chase, even if accomplished in a manner that places the occupants of the fleeing vehicle at risk, \"permits only the inference that defendant, while reckless, consciously avoided risk, which 'is the antithesis of a complete disregard for the safety of others' \" ( People v Williams , 206 AD3d at 1288, quoting People v Maldonado , 24 NY3d at 54). That conclusion is in no way impacted by defendant's failure to evince concern for the occupants of either vehicle after they left the road; his actions in blocking the Grand Caravan, as well as his demanding to know if there were weapons in either vehicle [*10] , reflect little beyond his need to ensure his safety as he approached vehicles whose occupants had, to reiterate, just elected to flee lawful traffic stops at high rates of speed. Thus, as County Court determined, the proof before the grand jury does not support a finding that defendant acted with the requisite depraved indifference to human life. Ordered that the order is modified, on the law, by reversing so much thereof as dismissed count 1 of the indictment charging defendant with murder in the second degree and reduced counts 3, 4, 5, 6, 7 and 8 of the indictment from reckless endangerment in the first degree to reckless endangerment in the second degree; motion denied to that extent and such counts reinstated; and, as so modified, affirmed. Footnotes Footnote 1: In granting defendant's motion, County Court stated that recordings \"reveal defendant's direction to a dispatcher for an EMS response.\" In their respective briefs, the People represent, and defendant concedes, that this evidence was not before the grand jury. It is therefore beyond the scope of review ( see CPL 210.20 [1] [b]). Footnote 2: Testimony established that state troopers have individual discretion to end a pursuit; thus, contrary to the dissent's reasoning, the grand jury could find that something \"other than the decision[s] of the drivers themselves to travel at a high rate of speed\" impelled defendant to maintain these \"dangerous high-speed chase[s]\" (dissenting op at 1444). "
},
{
"from": "gpt",
"value": "A 4-1\nmajority of the Third Department reversed County Court order that\ndismissed the depraved indifference Murder 2 count of the indictment and\nreduced the 6 counts of first degree reckless endangerment to second\ndegree reckless endangerment. These charges had their genesis in 2\nseparate, high speed chases on the New York State Thruway that ended\nwhen defendant, a State g, rammed his vehicle into the back of the pursued\nvehicle, forcing it off the road. An 11-year-old child died in one of these\ninstances. After inspecting the grand jury minutes, the County Court\nconcluded that the evidence was legally insufficient to establish depraved\nindifference to human life.\n\"Depraved indifference requires a 'highly fact-specific' inquiry (People\nv Heidgen, 22 NY3d 259, 276 [2013]),\n\" and both the majority and\ndissenting opinions detail the facts. But in sum, upon conducting the\nkind of review appropriate on this People's appeal from County Court's\ndismissal-modification, the majority concluded that grand jury\nevidence demonstrated that \"defendant decided to end both pursuits\nwith perilous, unsanctioned high-speed collisions while possessed of a\n'wickedness, evil or inhumanity' directed at two defiant drivers and the\nfriends and family who happened to be with them.\n\" The evidence that\ndefendant \"intentionally collided with an occupied minivan traveling at\nhighway speed, spinning it 180 degrees and sending it off the road,\nacross a median and into a guardrail\" was sufficient to sustain the first-\ndegree reckless endangerment charges."
}
]
|
2024.05671 | [
{
"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 Gaffney 2024 NY Slip Op 05671 [232 AD3d 1228] November 15, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 8, 2025 [*1] The People of the State of New York, Respondent, v Luke J. Gaffney, Appellant. Cambareri & Brenneck, Syracuse (Melissa K. Swartz of counsel), for defendant-appellant. Brittany Grome Antonacci, District Attorney, Auburn (Christopher T. Valdina of counsel), for respondent. Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered June 12, 2023. The judgment convicted defendant, upon a jury verdict, of aggravated assault upon a police officer or a peace officer. It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of aggravated assault upon a police officer or a peace officer (Penal Law § 120.11). The conviction arises out of an incident in which defendant stabbed a police officer in the leg near the femoral artery. We affirm. By failing to object to the verdict prior to the jury's discharge, defendant failed to preserve his contention that the verdict is repugnant because the jury acquitted him of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and the lesser included offense of attempted assault in the second degree (§ 120.05 [2]), but found him guilty of aggravated assault upon a police officer or a peace officer (§ 120.11; see People v Franco , 225 AD3d 1284 , 1284 [4th Dept 2024], lv denied 41 NY3d 1002 [2024]; People v Pearson , 192 AD3d 1555 , 1556 [4th Dept 2021], lv denied 37 NY3d 994 [2021]). Contrary to defendant's further contention, he \"failed to establish the lack of a strategic decision on the part of defense counsel [in failing to object to the verdict] inasmuch as a resubmission of the matter to the jury could have resulted in a guilty verdict\" on the other counts ( People v Bartlett , 89 AD3d 1453 , 1454 [4th Dept 2011], lv denied 18 NY3d 881 [2012]; see generally CPL 310.50 [2]). Even assuming, arguendo, that defendant preserved his contention that County Court erred in refusing to provide a justification charge, we conclude that there is no reasonable view of the evidence that would support such a defense ( see People v Watts , 57 NY2d 299, 301 [1982]). \"[A] defendant is justified in using 'deadly physical force' upon another only if that defendant 'reasonably believes that such other person is using or about to use deadly physical force' \" ( People v Brown , 33 NY3d 316 , 320 [2019], rearg denied 33 NY3d 1136 [2019], quoting Penal Law § 35.15 [2] [a]). Stated another way, the defendant must, as relevant here, establish that they subjectively \"believed deadly force was necessary to avert the imminent use of deadly force\" and that \"in light of all the circumstances\" and objectively, \"a reasonable person could have had th[at] belief[ ]\" ( People v Goetz , 68 NY2d 96, 115 [1986] [internal quotation marks omitted]). Here, defendant demonstrated neither. Defendant also contends that the People failed to establish that the victim suffered a serious physical injury and thus that his conviction for aggravated assault upon a police officer or a peace officer is legally insufficient and that the verdict is against the weight of the evidence. We reject those contentions. Here, \"[t]he wound inflicted by defendant . . . created a substantial [*2] risk of death due to its proximity to the victim's [femoral] artery . . . even though [it] was [not] in fact severed\" ( People v Gonzalez , 198 AD3d 543 , 543 [1st Dept 2021], lv denied 37 NY3d 1146 [2021]; see People v McKenzie , 161 AD3d 703 , 703-704 [1st Dept 2018], lv denied 32 NY3d 1113 [2018]). Viewing the facts \"in a light most favorable to the People,\" we conclude that \" 'there is a valid line of reasoning and permissible inferences from which a rational jury could have found' \" that the victim suffered a serious physical injury ( People v Danielson , 9 NY3d 342 , 349 [2007]). Similarly, viewing the evidence in light of the elements of the crime as charged to the jury ( see id .), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Defendant argues that the court improperly permitted the People to introduce two videos. Assuming, arguendo, that defendant preserved his objection to the video evidence and that the court erred in admitting it, we conclude that any error was harmless ( see People v Crimmins , 36 NY2d 230, 241-242 [1975]; People v Bryant , 144 AD3d 1523 , 1525 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]). Defendant's contention that he was deprived of a fair trial by prosecutorial misconduct on summation is, for the most part, unpreserved for our review inasmuch as defendant failed to object to all but one of the statements he now challenges on appeal ( see People v Watts , 218 AD3d 1171 , 1174 [4th Dept 2023], lv denied 40 NY3d 1013 [2023]; People v Graham , 171 AD3d 1566 , 1570 [4th Dept 2019], lv denied 33 NY3d 1104 [2019]). With respect to his preserved challenge, the court sustained defendant's objection and gave a curative instruction. Inasmuch as defendant did not object further or move for a mistrial, \"the curative instructions must be deemed to have corrected the error to . . . defendant's satisfaction\" ( People v Heide , 84 NY2d 943, 944 [1994]). Defendant argues that the court improperly discharged a juror with attention deficit/hyperactivity disorder for cause. Inasmuch as the People did not exhaust their peremptory challenges when the juror was dismissed or by the end of jury selection, the court's dismissal of the juror for cause does not constitute a basis for reversal ( see CPL 270.20 [2]; People v Stone , 239 AD2d 872, 873 [4th Dept 1997], lv denied 90 NY2d 943 [1997]). We reject defendant's contention that his sentence is unduly harsh and severe. Finally, we have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment. Present—Whalen, P.J., Curran, Greenwood, Nowak and Keane, JJ."
},
{
"from": "gpt",
"value": "Affirmed. Defendant was convicted of aggravated assault upon a police\nofficer or a peace officer (Penal Law § 120.11) for stabbing the officer in\nthe leg. App. Div. affirmed, finding that the wound inflicted by defendant\ncreated a substantial risk of death due to its proximity to the victim's\nfemoral artery even though the artery was not severed.. Viewing the facts\nin a light most favorable to the People,\n\"there is a valid line of reasoning\nand permissible inferences from which a rational jury could have found\nthat the victim suffered a serious physical injury."
}
]
|
2024.05246 | [
{
"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 Dillon 2024 NY Slip Op 05246 [231 AD3d 1352] October 24, 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 Ronald W. Dillon Jr., Appellant. Rural Law Center of New York, Inc., Plattsburgh (Kristin A. Bluvas of counsel), for appellant. Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent. Clark, J.P. Appeals (1) from a judgment of the County Court of St. Lawrence County (John F. Richey, J.), rendered July 2, 2020, upon a verdict convicting defendant of the crime of assault in the second degree, and (2) from a judgment of said court (Craig P. Carriero, J.), rendered November 22, 2022, which resentenced defendant. In the early morning hours of August 5, 2018, defendant and two other individuals were riding motorcycles in the Town of Waddington, St. Lawrence County. As they approached three pedestrians—the victim, a male pedestrian and a female pedestrian—walking along the side of the road, the male pedestrian motioned for the motorcycles to slow down. The motorcycles pulled over, and the male pedestrian and one of the motorcyclists got into an argument that escalated into a physical altercation. As the victim stood aside watching, he was punched on the left side of his face and then headbutted, and he suffered a fracture to his jaw. Defendant was later arrested in connection with the victim's injuries, and he was charged by indictment with assault in the second degree. Defendant initially proceeded to jury trial in February 2019, but a mistrial was declared pursuant to CPL 280.10 due to the ineffective assistance of counsel. Defendant retained new counsel and proceeded to a second jury trial in May 2019, where he was found guilty as charged. County Court (Richey, J.) sentenced defendant, as a second felony offender, to a prison term of seven years, to be followed by five years of postrelease supervision. After his predicate felony conviction for criminal possession of marihuana in the second degree ( see former Penal Law § 221.25, repealed by L 2021, ch 92, § 15) was reduced to criminal possession of cannabis in the third degree, a class A misdemeanor ( see Penal Law § 222.30), defendant moved to set aside his sentence pursuant to CPL 440.20. County Court (Carriero, J.) granted the motion, set aside the sentence and scheduled the matter for resentencing. Thereafter, County Court resentenced defendant to a prison term of seven years, to be followed by three years of postrelease supervision. Defendant appeals from the judgment of conviction and the judgment after resentencing. Defendant argues that the verdict is not supported by legally sufficient evidence and that it is against the weight of the evidence. \"When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether 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. In turn, when conducting a weight of the evidence review, we must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the [*2] testimony to determine if the verdict is supported by the weight of the evidence\" ( People v Jenkins , 215 AD3d 1118 , 1119 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 997 [2023]; see People v Estrella , 41 NY3d 514 , 517 [2024]; People v Saylor , 173 AD3d 1489 , 1490 [3d Dept 2019]). As relevant here, \"[a] person is guilty of assault in the second degree when[,] . . . [w]ith intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person\" (Penal Law § 120.05 [1]). \"Serious physical injury\" is defined as a \"physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ\" (Penal Law § 10.00 [10]). Defendant's contention that his conviction is not supported by legally sufficient evidence is preserved only with respect to the issue of identity, as this was the sole basis for his motion to dismiss ( see People v Shabazz , 177 AD3d 1170 , 1172 [3d Dept 2019]; People v Greenfield , 112 AD3d 1226 , 1226 [3d Dept 2013], lv denied 23 NY3d 1037 [2014]). [FN*] The victim admitted that he did not see who punched him on the left side of his face, as he had his eyes on the male pedestrian and one of the motorcyclists who were wrestling on the ground, but he did see that the other motorcyclist was standing to his right and defendant to his left. Further, after being knocked down by the punch, the victim saw defendant standing over him. A brief verbal exchange ensued and, when the victim stood back up, defendant headbutted him. Viewing this evidence in the light most favorable to the People, a valid line of reasoning exists that would allow a rational jury to find that defendant was the individual who punched and headbutted the victim ( see People v Scott , 219 AD3d 1572 , 1574-1575 [3d Dept 2023]; People v Lorenz , 211 AD3d 1109 , 1110 [3d Dept 2022], lv denied 39 NY3d 1112 [2023]; People v Smith , 174 AD3d 1039 , 1042 [3d Dept 2019], lv denied 35 NY3d 1097 [2020]). Thus, the identity element was established by legally sufficient evidence. Turning to defendant's challenge to the weight of the evidence, inasmuch as the victim admitted that he did not see who punched him, a different finding would not have been unreasonable. Further, a defense witness testified that she saw one of the other motorcyclists punch the victim, but she also admitted that she had spoken with defendant about her testimony and that he had urged her to blame one of the other motorcyclists. As to the victim's injuries, an oral surgeon who examined the victim diagnosed him with a fracture to the left side of his mandible, consistent with facial trauma, and performed a surgical procedure to wire the victim's jaw shut. The victim testified that his jaw was wired shut for several weeks and that he was unable to eat solid food for six weeks, causing him to lose approximately [*3] 25 pounds. At the trial, which was approximately 10 months after the incident, the victim continued to experience very occasional pain that he described as similar to arthritis. Although we do not minimize the trauma and pain suffered by the victim, the record is devoid of evidence about the injury's effect on the victim's daily living to support a finding that he sustained a \"protracted impairment of health or . . . of the function of any bodily organ\" (Penal Law § 10.00 [10]; compare People v Hilton , 166 AD3d 1316 , 1318-1319 [3d Dept 2018], lv denied 32 NY3d 1205 [2019]; People v Ford , 156 AD3d 1242 , 1244 [3d Dept 2017], lv denied 31 NY3d 1013 [2018]). Consequently, we are constrained to find that the verdict convicting defendant of assault in the second degree is against the weight of the evidence, as the record does not establish that the victim suffered a \"serious physical injury,\" as that term is defined in Penal Law § 10.00 (10) ( see People v Stewart , 18 NY3d 831 , 832-833 [2011]; People v Smith , 193 AD3d 1260 , 1262-1263 [3d Dept 2021], lv denied 37 NY3d 968 [2021]; see also People v Phillip , 279 AD2d 802, 803 [3d Dept 2001], lv denied 96 NY2d 905 [2001]; compare People v Burns , 188 AD3d 1438 , 1442-1443 [3d Dept 2020], lv denied 36 NY3d 1055 [2021]). Nevertheless, as such evidence establishes that the victim suffered a physical injury—\"impairment of physical condition or substantial pain\" (Penal Law § 10.00 [9])—deferring to the jury's credibility determinations and viewing the evidence in a neutral light, we are satisfied that a conviction of the lesser included offense of assault in the third degree is supported by the weight of the evidence, as each and every element of said crime is established beyond a reasonable doubt ( see Penal Law § 120.00 [1]; People v Wilder , 200 AD3d 1303 , 1304-1306 [3d Dept 2021]; People v Smith , 193 AD3d at 1262-1263; People v Sleasman , 24 AD3d 1041 , 1042-1043 [3d Dept 2005]). Therefore, under these circumstances, we reduce defendant's conviction of assault in the second degree to assault in the third degree, vacate the sentence imposed on such conviction and remit the matter to County Court for resentencing ( see Penal Law § 120.00 [1]; People v Smith , 193 AD3d at 1263; People v Phillip , 279 AD2d at 803). In light of such holding, defendant's challenge to the sentence imposed upon resentencing as harsh and excessive has been rendered academic. Defendant's remaining contentions have been examined and are found to lack merit. Aarons, Reynolds Fitzgerald, McShan and Mackey, JJ., concur. Ordered that the judgments are reversed, on the facts, defendant's conviction of assault in the second degree is reduced to assault in the third degree, the sentence imposed thereon is vacated and matter remitted to the County Court of St. Lawrence County for resentencing. Footnotes Footnote *: Nevertheless, we review defendant's claims that the People failed to establish defendant's intent and that the victim sustained a serious physical injury as part of his challenge to the weight of the evidence, as we must \"consider the evidence adduced with respect to each element of the crime for which defendant was convicted\" ( People v Signor , 173 AD3d 1264 , 1264 [3d Dept 2019] [internal quotation marks and citation omitted]). "
},
{
"from": "gpt",
"value": "Assault\n2 conviction reduced on appeal to Assault in the Third Degree. Victim had\nbeen punched in the face and head-butted, resulting in a fracture to his jaw.\nHe underwent a surgical procedure to wire his jaw shut for several weeks;\nfor six weeks he was unable to eat solid food and during that time lost\nabout 25 pounds. At the trial, which took place about 10 months after the\nassault, the victim said that he still experienced \"very occasional pain\"\nwhich was similar to arthritis. This evidence was insufficient to establish\n\"protracted impairment of health or . . . the function of a bodily organ, and\ntherefore did not meet the \"serious physical injury\" element of Assault in\nthe Second Degree under Penal Law § 120.05 (1)."
}
]
|
2024.03294 | [
{
"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 Tillmon 2024 NY Slip Op 03294 [228 AD3d 1343] June 14, 2024 Appellate Division, Fourth 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 Justin M. Tillmon, Appellant. Thomas L. Pelych, Hornell, for defendant-appellant. Brittany Grome Antonacci, District Attorney, Auburn (Susan C. Azzarelli of counsel), for respondent. Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered July 21, 2022. The judgment convicted defendant upon a jury verdict of assault in the second degree (two counts) and assault in the third degree. It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia, two counts of assault in the second degree (Penal Law § 120.05 [3]), defendant contends that the conviction of those counts is not supported by legally sufficient evidence inasmuch as the People failed to establish that the officers were performing a lawful duty when defendant was arrested and that he intended to prevent police officers from performing that lawful duty. Defendant failed to preserve his contention for our review ( see People v McCrea , 202 AD3d 1437 , 1437 [4th Dept 2022]; People v Townsley , 50 AD3d 1610 , 1611 [4th Dept 2008], lv denied 11 NY3d 742 [2008]; see generally People v Gray , 86 NY2d 10, 19 [1995]). In any event, the contention lacks merit. Viewing the evidence in the light most favorable to the People ( see People v Contes , 60 NY2d 620, 621 [1983]), we conclude that there is a valid line of reasoning and permissible inferences that would lead a rational juror to conclude that defendant intentionally prevented the officers from performing their lawful duty ( see People v Bell , 176 AD3d 1634 , 1634-1635 [4th Dept 2019], lv denied 34 NY3d 1075 [2019]; People v Metales , 171 AD3d 1562 , 1563 [4th Dept 2019], lv denied 33 NY3d 1107 [2019]; cf. People v William EE. , 276 AD2d 918, 919 [3d Dept 2000]). Defendant further contends that his conviction of assault in the second degree as charged in count two of the indictment is not supported by legally sufficient evidence that the officer in question sustained a physical injury. Contrary to the People's assertion, we conclude that defendant's contention is preserved for review ( see People v Lawrence , 221 AD3d 1583 , 1584-1585 [4th Dept 2023], lv denied 40 NY3d 1093 [2024]; cf. Bell , 176 AD3d at 1634). We nevertheless reject his contention. Physical injury is defined as \"impairment of physical condition or substantial pain\" (Penal Law § 10.00 [9]). \" '[S]ubstantial pain' cannot be defined precisely, but it can be said that it is more than slight or trivial pain\" ( People v Chiddick , 8 NY3d 445 , 447 [2007]). Here, the People elicited testimony that the officer hit his left knee on the floor and on a nearby object during a struggle with defendant, immediately after which he felt pain in his knee, walked with a limp, and had trouble bending that leg. The officer sought emergency medical attention for his injury, treated it with over-the-counter pain medication, and missed several days of work because of it, and his knee continued to trouble him years later. We conclude that the foregoing evidence is sufficient to establish that the officer sustained a physical injury ( see People v Talbott , 158 AD3d 1053 , 1054 [4th Dept 2018], lv denied 31 NY3d 1088 [2018]; People v Stillwagon , 101 AD3d 1629 , 1630 [4th Dept 2012], lv denied 21 NY3d 1020 [2013]). Furthermore, viewing the [*2] evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence with respect to whether the officer sustained a physical injury ( see People v Bookman , 224 AD3d 1269 , 1270 [4th Dept 2024]; People v Westbrooks , 213 AD3d 1274 , 1275 [4th Dept 2023], lv denied 39 NY3d 1144 [2023]; see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Although a different verdict would not have been unreasonable, it cannot be said that the jury \"failed to give the evidence the weight it should be accorded\" ( Bleakley , 69 NY2d at 495; cf. People v Cooney [appeal No. 2], 137 AD3d 1665, 1668 [4th Dept 2016], appeal dismissed 28 NY3d 957 [2016]; People v Gibson , 134 AD3d 1512 , 1514 [4th Dept 2015], lv denied 27 NY3d 1151 [2016]). Defendant's contention that he was punished for exercising his right to trial is not preserved for our review ( see People v Gilmore , 202 AD3d 1453 , 1454 [4th Dept 2022], lv denied 38 NY3d 1008 [2022]; People v Dupuis , 192 AD3d 1626 , 1627 [4th Dept 2021], lv denied 37 NY3d 964 [2021]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Curran, Montour, Nowak and DelConte, JJ."
},
{
"from": "gpt",
"value": "At trial\nof assault of police officer, the requisite element of physical injury was\nproven by testimony that established:\nthe officer hit his left knee on the floor and on a nearby object during a\nstruggle with defendant;\nhe felt pain in his knee, walked with a limp, and had trouble bending\nthat leg;\nthe officer sought emergency medical attention for his injury, treated it\nwith over-the-counter pain medication, and missed several days of\nwork because of it, and\nhis knee continued to trouble him years later."
}
]
|
2024.06084 | [
{
"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 Hensleigh 2024 NY Slip Op 06084 [233 AD3d 1105] 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] The People of the State of New York, Respondent, v Jordan Hensleigh, Appellant. Steven M. Sharp, Albany, for appellant. Karen A. Heggen, District Attorney, Ballston Spa (Jesse L. Ashdown of counsel), for respondent. Ceresia, J. Appeal from judgment of the County Court of Saratoga County (Chad W. Brown, J.), rendered August 10, 2023, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree. Defendant was charged by indictment with two counts of assault in the second degree stemming from an altercation in court during which defendant, who had been informed that there was an active warrant authorizing his arrest, resisted being detained by court officers, one of whom sustained injuries during the incident. In an omnibus motion, defendant subsequently moved to dismiss the indictment on several grounds, including that there exists a legal impediment to conviction ( see CPL 210.20 [1] [h]). That is, defendant alleged that the court officers were not performing a lawful duty, as required to establish his commission of the charged crimes, [FN*] because they had no authority to execute an arrest warrant. The People opposed the motion, and County Court denied it. Thereafter, in full satisfaction of the indictment as well as another unrelated indictment charging defendant with family offenses, defendant pleaded guilty, as relevant here, to the reduced charge of attempted assault in the second degree and waived his right to appeal. Defendant was subsequently sentenced by County Court, as a second felony offender with a prior violent felony, to a prison term of 2 to 4 years, which was ordered to run consecutive to an unrelated prison term. Defendant appeals. As an initial matter, defendant's argument is properly before us despite his plea of guilty and waiver of the right to appeal. Contrary to the People's contention, defendant is not challenging the legal sufficiency of the grand jury evidence or the factual sufficiency of his plea allocution. Rather, defendant asserts that there is a legal impediment to prosecution, in that \"there is no set of facts that could be proved, or to which a defendant could plead, that would establish guilt of [the charged crime] upon the theory alleged\" ( People v Plunkett , 19 NY3d 400 , 407 [2012]). Such a challenge is not forfeited by a guilty plea ( see id .). Further, a legal impediment argument is akin to a claim of a jurisdictional defect, which is not foreclosed by an appeal waiver ( see People v Wheeler , 216 AD3d 1314 , 1316 [3d Dept 2023], lv denied 40 NY3d 1082 [2023]). Turning to the merits, the record reveals that, while defendant was present in Family Court for an unrelated matter, defendant and his attorney were advised by court officers that there was an outstanding warrant for his arrest and that, following the court proceeding, he would be held in a secure area to await the arrival of the police. When defendant's matter concluded and he started to leave the courtroom, another court officer told him, \"[t]here's a warrant for your arrest. I need to detain you.\" At that point, defendant started to push past two court officers, and he was tackled to the ground. In the course of this struggle, a court officer [*2] suffered physical injuries. The police, who were already on the scene, immediately placed defendant under arrest pursuant to the arrest warrant. A peace officer, of which a uniformed court officer is one type ( see CPL 2.10 [21] [a]), \"in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody\" (Penal Law § 35.30 [1]). Here, the court officers had the requisite reasonable belief that defendant had committed an offense by virtue of their knowledge that an arrest warrant had been issued. That said, they possessed the lawful authority under Penal Law § 35.30 (1) to utilize physical force to temporarily detain defendant in order to facilitate the arrest by the police who were present for that purpose ( compare People v Borrero , 118 AD2d 345, 350 [1st Dept 1986] [holding that, under a similar statutory provision pertaining to private citizens, an individual had the authority to detain another, using physical force, until police arrived]). In so holding, we are mindful that, given the wide-ranging contexts in which they serve ( see CPL 2.10 [1]-[86]), peace officers are acknowledged to have \"special duties\" that are unique to \"the specialized nature of [an officer's] particular employment\" (CPL 2.20 [2]). In our view, the temporary detention carried out in this case was not inconsistent with the specialized nature of a uniformed court officer's particular employment. Based upon the foregoing, defendant's argument that there is a legal impediment to his conviction is without merit. Clark, J.P., Pritzker, Reynolds Fitzgerald and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: As relevant here, \"[a] person is guilty of assault in the second degree when . . . [w]ith intent to prevent a peace officer . . . from performing a lawful duty, . . . he or she causes physical injury to such peace officer\" (Penal Law § 120.05 [3]). \"To sustain such a conviction, the People must establish that the injured [peace officer] was engaged in a lawful duty at the time of the assault by the defendant\" ( People v Molineaux , 156 AD3d 1250 , 1251 [3d Dept 2017] [internal quotation marks and citations omitted], lv denied 31 NY3d 1085 [2018]). "
},
{
"from": "gpt",
"value": "Defendant properly charged with second degree assault under Penal Law\n§ 120.05 (3) arising out of scuffle in Family Court courtroom in which\ncourt officer was injured while trying to detain the defendant with\noutstanding arrest warrant. Court officers \"possessed the lawful authority\nunder Penal Law § 35.30 (1) to utilize physical force to temporarily detain\ndefendant in order to facilitate the arrest by the police,\n\" and \"the temporary\ndetention carried out in this case was not inconsistent with the specialized\nnature of a uniformed court officer's particular employment.\n\""
}
]
|
2024.05513 | [
{
"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 Hussain 2024 NY Slip Op 05513 [234 AD3d 23] November 7, 2024 Garry, P.J. Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 19, 2025 [*1] The People of the State of New York, Respondent, v Nauman Hussain, Also Known as Shawn Hussain and Arslan Hussain, Appellant. Third Department, November 7, 2024 APPEARANCES OF COUNSEL Law Office of Steven Sharp , Albany ( Steven M. Sharp of counsel), for appellant. Susan J. Mallery , District Attorney , Howes Caves ( Karen F. McGee , New York Prosecutors Training Institute, Inc. , Albany, of counsel), for respondent. {**234 AD3d at 25} OPINION OF THE COURT Garry, P.J. Appeal from a judgment of the Supreme Court (Peter A. {**234 AD3d at 26} Lynch, J.), rendered May 31, 2023 in Schoharie County, upon a verdict convicting defendant of the crime of manslaughter in the second degree (20 counts). In October 2018, a stretch limousine for hire crashed at the bottom of a hill in Schoharie County, killing all 17 of its passengers, two pedestrians and the driver of the vehicle. An investigation revealed that the limousine had experienced catastrophic brake failure, attributable to protracted neglect of proper inspection, maintenance and repairs. During the relevant period, defendant was handling the day-to-day affairs of the business that rented out the limousine, including putting the vehicle into service on the day of the accident. Defendant was subsequently indicted on 20 counts of manslaughter in the second degree and 20 counts of criminally negligent homicide. Following his guilty plea to the lesser counts and later withdrawal of that plea, the matter proceeded to trial. A jury found defendant guilty of the manslaughter counts, and Supreme Court sentenced him to 20 concurrent prison terms of 5 to 15 years. Defendant appeals. Defendant first argues that his convictions are legally insufficient and against the weight of the evidence, maintaining that the People failed to establish both the requisite mens rea and causation. We address each aspect of his challenge in turn. As charged here, \"[a] person is guilty of manslaughter in the second degree when . . . [h]e [or she] recklessly causes the death of another person\" (Penal Law § 125.15 [1]). In this context, a defendant acts recklessly if he or she \"is aware of and consciously disregards a substantial and unjustifiable risk\" that death will occur (Penal Law § 15.05 [3]; see People v Gaworecki , 37 NY3d 225 , 230 [2021]). \"The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation\" (Penal Law § 15.05 [3]), and the defendant must \"engage in some blameworthy conduct contributing to that risk\" ( People v Asaro , 21 NY3d 677 , 684 [2013]; see People v Li , 34 NY3d 357 , 364 [2019]; People v Boutin , 75 NY2d 692, 696 [1990]). Viewing the facts in a light most favorable to the People ( see People v Danielson , 9 NY3d 342 , 349 [2007]), the proof at trial established that, during the time that defendant oversaw the operations of the subject limousine rental business, owned by his father, the company had no systems in place for the routine inspection and maintenance of its vehicles, in contravention of {**234 AD3d at 27} both industry practice and regulation. The business' limousines were observed to have expired inspection stickers and registrations, and at least one driver ultimately elected to stop working for the business because he was \"uncomfortable\" with its vehicles. That driver specifically refused to drive the subject limousine—a 2001 XLT Ford Excursion that had been stretched after market. [*2] Defendant was directly involved in the 2016 purchase of that limousine, and he was personally advised by its seller of the need to comply with the regulations of, among others, the Department of Transportation (hereinafter DOT), given the vehicle's 18-person seating capacity. Defendant's former driver testified that he similarly brought relevant DOT regulations to defendant's attention, but defendant assured him that he did not need to comply with those regulations because the limousine had been registered as a personal vehicle. The limousine, however, had been repeatedly registered with the Department of Motor Vehicles (hereinafter DMV), by either defendant or the business generally, as a vehicle for hire. Beginning in June 2017 and up until the date of the accident, defendant was advised on numerous occasions by DOT officials of the need to obtain a DOT certificate of authority to transport passengers for compensation in any vehicle with a seating capacity of more than 10 passengers and that, before such certificate would be granted, any such vehicle would need to undergo a DOT bus inspection. Online listings seeking to sell the limousine began to emerge in November 2017, under a phone number attributable to defendant, in which the vehicle was marketed as \"DOT [r]eady.\" In January 2018, due to his continued noncompliance with DOT's admonitions, defendant was expressly advised to cease such operations. Subsequent roadside inspections of the limousine—which DOT officials made clear to defendant were not the requisite bus inspection—resulted in a number of violations being issued to defendant. At the first such inspection in March 2018, an out-of-service sticker was placed on the vehicle for, among other issues, a constricted hydraulic brake hose going to the left rear wheel—intentionally impinged by what appeared to be a vice grip—that resulted in defective braking. At the end of April 2018, defendant brought the vehicle to a location of Mavis Discount Tire for repairs, after transmission fluid had been erroneously added to the limousine's braking system. Defendant reported that the brake pedal was low and that the right rear brake was grinding. Notwithstanding their prior advice to defendant {**234 AD3d at 28} to have the brake system promptly flushed to address the contaminated brake fluid, Mavis discovered that transmission fluid had worked its way through the braking system. The vehicle's brake pads were also worn down to the metal. Mavis made certain comprehensive repair recommendations at that time, but defendant—who was still actively trying to sell the limousine—instructed them to perform only the minimum repairs needed to get the vehicle back on the road in time for prom season. Ultimately, Mavis replaced the left rear hydraulic brake hose, left rear caliper and the vehicle's brake pads and bled the system. When defendant retrieved the vehicle in May 2018, he requested that Mavis inspect it, and Mavis issued defendant a DMV inspection sticker, [*3] although it was unauthorized to do so for such a large vehicle. Despite the fact that several other out-of-service violations identified in the March 2018 roadside inspection were not addressed, DOT's out-of-service sticker was removed from the limousine sometime after these repairs. Defendant brought the limousine back to Mavis again in June and July 2018, having personally experienced that its brake pedal was still not holding pressure predictably. Mavis again advised defendant as to what needed to be done to fix the braking system correctly following its contamination, making clear that there would be \"[r]epercussions\" from the transmission fluid, meaning that \"internal components could fail,\" and that defendant was \"fighting the inevitable\" in that respect. Mavis specifically recommended replacing all four calipers, among other parts, but defendant again directed that the minimum repair be performed to get the vehicle back on the road, which this time amounted to only brake pads. Defendant requested assurances from Mavis that these minimum repairs would be adequate, assurances that Mavis would not provide. Defendant then continued to rent out the limousine for hire, while also continuing to advertise it for sale as \"full[y] serviced.\" In September 2018, at a second DOT roadside inspection, defendant received many of the same violations, as well as a violation for failing to correct previously-identified defects. An out-of-service sticker was again applied to the limousine, and defendant was again expressly informed that the out-of-service violations had to be corrected before the vehicle could be used on the roadways in this state. He was also reminded that the limousine required a DOT bus inspection before it could be {**234 AD3d at 29} operated legally. Defendant never obtained such inspection, and a vehicle autopsy conducted following the subject accident revealed that none of the identified defects had been remedied. DOT's most recent out-of-service sticker was discovered crumpled up in defendant's personal vehicle. [1] The foregoing proof was sufficient for the jury to conclude beyond a reasonable doubt that defendant was aware of and consciously disregarded the state of disrepair of the limousine's braking system—including by avoiding proper inspection, neglecting appropriate maintenance and affirmatively rejecting necessary repairs. Given the circumstances, including the age of this oversized vehicle transporting passengers, the jury could find that defendant disregarded a substantial and unjustifiable risk of death. As the proof also made clear that such disregard was a gross deviation from the standard of conduct of reasonable persons in defendant's situation, the People proffered legally sufficient evidence to establish the required mental state for second degree manslaughter ( see People v Phippen , 232 AD2d 790, 790-791 [3d Dept 1996]; cf. People v Congregational Khal Chaisidei Skwere , 232 AD2d 919, 921 [3d Dept 1996], lv denied 89 NY2d 984 [1997]). [*4] [2] As for causation, a person causes the death of another when that person's conduct is a \"sufficiently direct cause\" of that death ( People v Kibbe , 35 NY2d 407, 412 [1974]; see People v Hernandez , 82 NY2d 309, 314, 317 [1993]). Conduct is a sufficiently direct cause of death for the purpose of criminal liability when (1) the conduct is \"an actual contributory cause of death\" ( People v Matos , 83 NY2d 509, 511 [1994]) and (2) the death was a \"reasonably foreseeable\" result of that conduct ( People v Hernandez , 82 NY2d at 314; see People v Davis , 28 NY3d 294 , 300 [2016]). Conduct is an actual contributory cause of death when that conduct \"forged a link in the chain of causes which actually brought about the death\" ( People v Stewart , 40 NY2d 692, 697 [1976]; see People v Li , 34 NY3d at 369)—in other words, when the conduct \"sets in motion,\" or continued in motion, the events that ultimately resulted in the death ( People v Matos , 83 NY2d at 511; see People v DaCosta , 6 NY3d 181 , 184 [2006]; Matter of Anthony M. , 63 NY2d 270, 280 [1984]). Death is a reasonably foreseeable result of a person's conduct when the death \"is something which should have been foreseen as being reasonably related to the acts of the accused\" ( People v Kibbe , 35 NY2d at 412; see People v Davis , 28 NY3d at 300). The People's uncontroverted expert testimony established that the cause of the accident was catastrophic brake failure. {**234 AD3d at 30} More specifically, the expert explained that, as the limousine descended the subject hill, the driver would have been forced to progressively increase the amount of brake pedal pressure to slow the vehicle's momentum due to the preexisting condition of its rear brakes; the right rear brake was already inoperable because both caliper pistons were seized within their bores, and the left rear brake had reduced braking force due to excessive wear of its components, consistent with recurrent metal-to-metal contact. The expert estimated that those conditions existed for at least six months preceding the accident. At some point descending that steep gradient, the braking force, and thus the pressure of the fluid in the braking system, caused a steel transverse brake line, which was also corroded, to fracture. Once that occurred, the rear brakes were rendered completely inoperable. Although the dual circuit master cylinder continued to enable front braking, the sheer kinetic energy of the limousine quickly caused the brake fluid to far surpass its boiling point, introducing air into the liquid and permitting it to compress, which in turn caused a loss of hydraulic pressure in the braking system altogether. Defendant argues that the People were required to show that it was foreseeable that the accident, and thus the death of the victims, \"would occur in the manner that it did\" ( People v Roth , 80 NY2d 239, 244 [1992]), which, according to defendant, is that a corroded steel brake line would fracture and cause a cascading loss of hydraulic pressure. First, this is an [*5] oversimplification of the expert's testimony, which made clear that the preexisting condition of the limousine's rear brakes—as a result of the aforementioned lack of inspection, maintenance and repairs—was a crucial factor in what caused the transverse brake line to fracture in the first instance ( compare People v Bonaventura , 271 App Div 900, 900 [2d Dept 1946]). As explained above, the condition of the rear brakes was directly attributable to defendant's conduct ( compare People v Phippen , 232 AD2d at 791-792). Second, we are not persuaded that this case is akin to manufacturing liability cases where there can be countless, disparate hazards on a jobsite, necessitating that the People prove that one among many hazards actually caused the death(s) at issue, and thus whether that precise cause of death was foreseeable ( compare People v Roth , 80 NY2d at 243-244; People v Warner-Lambert Co. , 51 NY2d 295, 307 [1980], cert denied 450 US 1031 [1981]). The highly specific showing that defendant urges regarding the mechanisms of {**234 AD3d at 31} this interconnected hydraulic braking system was not required to establish causation under these circumstances. There is thus \"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 at 349 [internal quotation marks and citations omitted]; cf. People v Congregational Khal Chaisidei Skwere , 232 AD2d at 920-921). Given, among other things, that the jury was asked to credit the testimony of Mavis employees who admitted to performing certain unauthorized/fraudulent acts, another verdict would not have been unreasonable ( see People v Danielson , 9 NY3d at 348). However, weighing the relative probative force of the testimony and the relative strength of conflicting inferences that may be drawn from the testimony ( see id .), we further find that the verdict is supported by the weight of the evidence ( see Penal Law § 125.15 [1]). [3] Defendant relatedly argues that he was deprived of his right to a fair trial by Supreme Court's jury instruction on causation. Supreme Court read the jury the expanded pattern instruction on cause of death but denied defendant's requests to (1) tailor its explanation of foreseeability to brake failure and (2) include the optional pattern language for intervening acts ( see CJI2d[NY] Expanded Charge on Cause of Death, https://www.nycourts.gov/judges/cji/1-General/CJI2d.Causation-Death.pdf [last accessed Nov. 1, 2024]). As for foreseeability, although the People proffered an abundance of proof illustrating the depth of defendant's recklessness, and his extraordinarily cavalier approach to running a highly regulated business more generally, there was no evidence upon which the jury could have reasonably concluded that anything other than catastrophic brake failure was the actual, immediate cause of the subject accident ( compare People v Roth , 80 NY2d at 239). For example, although the People [*6] elicited proof that defendant permitted the limousine's driver to operate the vehicle on the day of the accident knowing that the driver lacked the requisite passenger endorsement on his commercial driver's license, the expert proof at trial conclusively established that no driver error was to blame for the actual crash. Thus, reading the pattern charge against the evidence adduced at trial ( see People v Walker , 26 NY3d 170 , 174-175 [2015]), we do not share defendant's concerns over juror unanimity. Defendant was also not entitled to an intervening cause instruction based upon Mavis' allegedly fraudulent work. The {**234 AD3d at 32} testimony at trial established that Mavis erroneously billed defendant in May 2018 for certain repairs that had not in fact been performed—replacing the brake master cylinder and flushing the brake system to remove any remaining transmission fluid. However, the evidence further established that those two repairs were ultimately unnecessary at the time; it was undisputed that the master cylinder was functional at the time of the accident and that the limousine's brake fluid ran clear after the lines were bled. In any event, the proof also showed that defendant was repeatedly cautioned by Mavis that the minimal work that he authorized them to perform was temporary and/or partial and that components of the braking system would continue to fail. As for Mavis' inspection, it first bears noting that, even if a DMV inspection had been permissible for this commercial vehicle and duly performed, the evidence at trial was that Mavis did not have the authority to fail a vehicle from a DMV inspection for facial corrosion on a brake line. Significantly, the evidence uniformly demonstrated that defendant was fully aware that a DOT bus inspection was the safety inspection required for the limousine when he asked Mavis to perform an inspection. \"[A]n intervening, independent agency will not exonerate [a] defendant unless the death is solely attributable to the secondary agency, and not at all induced by the primary one\" ( People v Li , 34 NY3d at 370 [internal quotation marks and citations omitted]). As there is no view of the trial evidence that would support a finding that the victims' deaths are solely attributable to Mavis, the pattern charge provided was adequate. [4] Defendant next argues that Supreme Court violated his right to the effective assistance of counsel when it refused to grant him additional time to confer with counsel prior to withdrawing his guilty plea. [FN*] \"A granting of an adjournment for any purpose is a matter of discretion for the trial court\" ( People v Singleton , 41 NY2d 402, 405 [1977]; see People v Oskroba , 305 NY 113, 117 [1953]), although, \"when the protection of fundamental rights has been involved in requests for adjournments, that discretionary power has been more narrowly construed\" ( People v Spears , 64 NY2d 698, 700 [1984]; see People v Danaher , 115 AD2d 905, 906-907 [3d Dept 1985]). In September 2021, the People and defendant [*7] entered into a plea agreement, pursuant to which defendant agreed to plead {**234 AD3d at 33} guilty to the 20 counts of criminally negligent homicide in satisfaction of the indictment and in exchange for a term of probation. County Court (Bartlett III, J.) accepted defendant's guilty plea and placed him on interim probation in accordance with the agreement. Judge Bartlett later retired, and the case was reassigned in July 2022. The matter was scheduled for sentencing during a subsequent appearance before Supreme Court. On the date of the anticipated sentencing in August 2022, the court advised defendant that it would not abide by the plea agreement and intended to sentence him, that day, to the maximum allowable term of imprisonment—1 1/3 to 4 years—for each count to which he had pleaded guilty, which would be required to run concurrently ( see Penal Law §§ 70.00 [2] [e]; [3] [b]; 70.25 [2]; 125.10). The court then afforded defendant just 15 minutes to confer with counsel to decide whether he wished to move forward or withdraw his plea. When the proceedings resumed approximately 20 minutes later, the court denied defendant's request for additional time and demanded an answer. Counsel responded that \"[i]n light of the [c]ourt's position, [defendant was] impelled\" to seek vacatur of the plea, and the court granted that request. This haste was improvident. We cannot condone the impatience demonstrated by Supreme Court when, surely, a longer period of adjournment was appropriate in light of the circumstances. Nonetheless, we do not conclude that this abuse necessitates reversal. \"[A] defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea\" ( People v Mitchell , 21 NY3d 964 , 966 [2013]; see People v Rozzell , 20 NY2d 712, 713 [1967]), but this is not an appeal from a conviction following a guilty plea where the right to counsel has arguably been infringed upon with respect to such a motion. Ultimately, unlike the right to a fair trial, a defendant does not have the right to a plea bargain ( see People v Bank , 28 NY3d 131 , 137 [2016]; People v Britt , 198 AD3d 1326 , 1328 [4th Dept 2021], lv denied 37 NY3d 1095 [2021]). [5] Defendant lastly challenges the severity of the sentence imposed, which was the maximum allowable prison sentence ( see Penal Law §§ 70.00 [2] [c]; [3] [b]; 70.25 [2]; 125.15 [1]). Initially, defendant's claim of vindictive sentencing is unpreserved for our review ( see People v Paul , 202 AD3d 1203 , 1212 [3d Dept 2022], lv denied 38 NY3d 1034 [2022]; People v Kabia , 197 AD3d 788 , 792 [3d Dept 2021], lv denied 37 NY3d 1162 [2022]). Additionally, because defendant withdrew his guilty {**234 AD3d at 34} plea and was ultimately convicted of the higher counts of this indictment, we are unpersuaded by any suggestion that his time on interim probation transforms this maximum permissible sentence into an illegal one. Finally, we decline defendant's request to reduce his sentence as a matter of discretion in the interest of justice ( see [*8] CPL 470.15 [6] [b]). Although we are cognizant of defendant's limited criminal history and his general compliance with probation, the underlying tragedy cannot be discounted. Twenty people lost their lives because defendant did not wish to inspect, maintain or repair the subject limousine. The sentence imposed is not unduly harsh or severe but instead reflects the grievous harm caused by defendant's recklessness, and his callousness. Defendant's remaining claim is unavailing. Egan Jr., Reynolds Fitzgerald, Ceresia and Powers, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: We reject the People's assertion that this argument is not preserved, as well as their claims of preclusion premised upon Matter of Hussain v Lynch (215 AD3d 121 [3d Dept 2023]). "
},
{
"from": "gpt",
"value": "Manslaughter 2 convictions upheld in case arising out of the crash,\nresulting in the deaths of 20 people, of a stretch limousine that was part of\ndefendant's livery fleet; defendant was not the driver of the limo that\ncrashed, according to expert testimony, due to catastrophic brake failure."
}
]
|
2024.04214 | [
{
"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 Shaw 2024 NY Slip Op 04214 [230 AD3d 599] August 14, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 2, 2024 [*1] The People of the State of New York, Respondent, v Kenneth Shaw, Appellant. Mischel & Horn, P.C., New York, NY (Richard E. Mischel of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered December 2, 2019, convicting him of manslaughter in the first degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 20 years, to be followed by 5 years of postrelease supervision. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of 20 years, to be followed by 5 years of postrelease supervision, to a determinate term of imprisonment of 10 years, to be followed by 5 years of postrelease supervision; as so modified, the judgment is affirmed. The defendant was convicted of manslaughter in the first degree in connection with the July 2017 stabbing of John Savillo in Cookie's Lounge (hereinafter Cookie's), a bar in Queens. At trial, Diane Colucciello, an eyewitness, testified on behalf of the People that the defendant and Savillo were both regular customers at Cookie's. On the night in question, Savillo was at Cookie's with a woman named Casandra. Savillo suddenly became angry when the defendant and his girlfriend were admiring Casandra's tattoo. Savillo pushed the defendant and knocked him to the floor. According to Colucciello, the defendant got up and the two began to fight, at which point Colucciello backed away. Colucciello's son Tommy, who had been banned from Cookie's for aggressive behavior, was waiting outside of the bar and came in once the fighting began. Colucciello testified that she told Tommy to get out, pushed him out, and locked the door to the bar. Colucciello then turned her attention back to the fight and saw that Savillo had been stabbed. Colucciello, who had a felony conviction for possession of a forged instrument, admitted that she lied to the police and told them that her son was not at Cookie's that night because she wanted to protect him. Colucciello testified that Tommy ran into the bar when Savillo started the fight in order to assist Savillo. Upon turning her attention back to the fight, Colucciello testified that she saw the defendant with a knife, that he was \"in tears,\" and that he told Savillo that he was sorry and \"didn't mean it.\" Paramedics arrived and found Savillo bleeding from the abdomen, with an evisceration, meaning his intestine was sticking out from a stab wound. Savillo was taken to the hospital, where he was found to be bleeding profusely from two stab wounds, one of which had such force that it lacerated his liver. Medical personnel were able to stabilize Savillo for a period of time, [*2] but he began to bleed again and eventually died from excessive bleeding. A toxicology report disclosed that Savillo had in his system, among other things, alcohol, Xanax, and cocaine, which a People's witness testified can elevate blood pressure. Savillo also told emergency medical services personnel that he had taken blood thinners and cocaine earlier that day. The police did not recover any weapons from the scene of the incident. The defense presented the testimony of Christine DeFilippis, who had been the bartender at Cookie's on the night of the incident. DeFilippis testified that Savillo was a very good friend, but he would become angry \"for silly reason[s]\" and had been in a fight in Cookie's before. She also testified that she previously had never seen the defendant act aggressively, yell, or engage in any altercation. DeFilippis confirmed Colucciello's testimony that Tommy had been banned from Cookie's because he was a \"troublemaker\" who \"usually [wound] up fighting.\" DeFilippis also confirmed that the subject altercation had begun when Savillo \"went a little bit out of his mind\" and \"got very angry and started to yell at [the defendant].\" According to DeFilippis, the defendant \"backed off\" and apologized, at which point Tommy came running into the bar. DeFilippis began to head back to her seat behind the bar when she heard a commotion, turned, and saw Savillo shove the defendant, who stumbled to the floor. DeFilippis looked out the window for someone to help break up the fight. DeFilippis then turned her attention back to the fight, where she saw \"a huddle of people\" surrounding the defendant on the floor, and it appeared that Savillo was kicking the defendant. DeFilippis testified that the defendant \"was getting beat up pretty bad\" and that Savillo threw a bar stool at him, but that she thereafter \"kind of blanked out\" and did not recall much about the fight or see anyone with a knife. DeFilippis called 911 and requested an ambulance, and she testified that it was at this time that Colucciello locked the door to the bar to keep Tommy out. The defendant contends that the People failed to establish that he intended to cause serious physical injury ( see Penal Law § 125.20 [1]) and failed to disprove his justification defense ( see id. § 35.15). The defendant's challenge to the legal sufficiency of the evidence disproving his justification defense beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05 [2]; People v Hawkins , 11 NY3d 484 , 492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt ( see People v Irving , 226 AD3d 703 , 703 [2024]; People v Green , 223 AD3d 914 , 914-915 [2024]). Furthermore, the defendant does not dispute that he is the person who stabbed Savillo, and the defendant's intent to cause serious physical injury ( see Penal Law § 10.00 [10]) may be inferred from the medical evidence regarding the nature and severity of the stab wounds ( see People v Steinberg , 79 NY2d 673, 682 [1992]; People v Crocker , 186 AD3d 500 , 501 [2020]). 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, 410 [2004]; People v Bleakley , 69 NY2d 490, 495 [1987]). Here, while an acquittal would not have been unreasonable, the verdict of guilt was not against the weight of the credible evidence ( see People v Danielson , 9 NY3d at 348-349). The sentence imposed was excessive to the extent indicated herein ( see CPL 470.15 [6] [b]; People v Suitte , 90 AD2d 80 [1982]). Brathwaite Nelson, J.P., Chambers, Wan and Landicino, JJ., concur."
},
{
"from": "gpt",
"value": "Manslaughter 1 conviction, for stabbing the victim during a bar fight,\naffirmed. In addition to his admission that he stabbed the victim,\ndefendant's intent to cause serious physical injury (Penal Law §\n10.00[10]) may be inferred from the medical evidence regarding the nature\nand severity of the stab wounds."
}
]
|
2024.05372 | [
{
"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 White 2024 NY Slip Op 05372 [231 AD3d 1429] October 31, 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] (October 31, 2024) The People of the State of New York, Respondent, v Shaquille White, Appellant. Mitchell Kessler, Cohoes, for appellant. P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent. Mackey, J. Appeal from a judgment of the County Court of Albany County (Andra Ackerman, J.), rendered July 16, 2021, upon a verdict convicting defendant of the crimes of kidnapping in the second degree, assault in the second degree, strangulation in the second degree, rape in the first degree, criminal sexual act in the first degree and tampering with a witness in the fourth degree. In 2020, defendant was charged by indictment with kidnapping in the second degree, assault in the second degree, strangulation in the second degree, rape in the first degree, criminal sexual act in the first degree and tampering with a witness in the fourth degree. After a jury trial, he was convicted as charged. At sentencing, County Court found defendant to be a second violent felony offender, and it sentenced him to a prison term of 25 years, to be followed by 15 years of postrelease supervision, on the rape in the first degree conviction, a consecutive prison term of 20 years on the kidnapping in the second degree conviction, to be followed by five years of postrelease supervision, and to lesser concurrent terms of incarceration on the remaining convictions. Defendant appeals. Initially, defendant contends that the evidence is legally insufficient to support his conviction for kidnapping in the second degree and that all of the convictions are against the weight of the evidence. \"When assessing the legal sufficiency of a jury verdict, [this Court] view[s] the facts in the light most favorable to the People and examine[s] whether 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 Bridges , 220 AD3d 1107 , 1108 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 1091 [2024]). \"[W]hen conducting a weight of the evidence review, [this Court] must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence\" ( People v Jenkins , 215 AD3d 1118 , 1119 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 997 [2023]). Deference is afforded to the jury's credibility determinations when this Court conducts a weight of the evidence review ( see People v Mansfield , 223 AD3d 1111 , 1115 [3d Dept 2024], lv denied 42 NY3d 928 [2024]; People v Karnes , 223 AD3d 1119 , 1122 [3d Dept 2024], lv denied 42 NY3d 928 [2024]). As relevant here, \"[a] person is guilty of kidnapping in the second degree when he [or she] abducts another person\" (Penal Law § 135.20). \"A person is guilty of assault in the second degree when . . . [w]ith intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third [*2] person\" (Penal Law § 120.05 [1]). A person is guilty of strangulation in the second degree when he or she \"applies pressure on the throat or neck of such person\" (Penal Law § 121.11 [a]) and it results in the \"loss of consciousness for any period of time\" (Penal Law § 121.12). \"A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person . . . [b]y forcible compulsion\" (Penal Law former § 130.35 [1]), which means compelling the act by using \"physical force\" (Penal Law § 130.00 [8] [a]). \"A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct . . . with another person . . . [b]y forcible compulsion\" (Penal Law former § 130.50 [1]). Finally, \"[a] person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, . . . he [or she] wrongfully induces or attempts to induce such person to absent himself [or herself] from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding\" (Penal Law § 215.10 [a]). At trial, the victim testified that in May 2020, she met defendant at a \"weed spot.\" Over the next few days, they became intimate and spent time together at an unfinished apartment the victim and her mother had rented in the Village of Waterford, Saratoga County. Five days into their relationship, which the victim considered to be casual, she called it off while she was with defendant in her Jeep at a gas station in the City of Cohoes, Albany County. After initially storming off, defendant returned and punched the victim in the face, breaking her jaw and dislodging several teeth. He threatened that he \"was [not] going back to jail,\" that she was \"fu**ing with his gangster\" and that he would kill her. He then ordered her to get into her Jeep's passenger seat and drove them to the apartment, where he took her car keys and cell phone. At the apartment, defendant repeatedly punched the victim in the face, knocking her unconscious several times, forcibly performed oral sex on her, strangled her to the point that she lost consciousness, and had sexual intercourse with her by force. Defendant threatened to kill her several times throughout this ordeal and repeatedly ignored her pleas for medical assistance. Eventually, defendant agreed to let the victim leave, with him, but only after she promised not to tell anyone what had happened. The victim's mother testified that on the date of the incident, the victim was with defendant, whom she had met \"a couple of times.\" At some point during the day, she called the victim on her cell phone and \"heard her screaming and crying\" that she wanted to come home, then the call ended abruptly. After there was no answer when she tried again, she called the police. At the mother's request, the police went to the apartment but, by the time they arrived, the victim and defendant were no longer there. An hour or two later [*3] , they appeared at the mother's residence in Cohoes, at which time the victim's \"face was all bloody,\" her teeth were broken and she could not stand up straight. The mother testified that she immediately asked the victim and defendant what had happened, and defendant told her that the victim had been \"jumped\" by his ex-girlfriend. Defendant eventually drove the mother and the victim to and from the hospital. After they returned from the hospital, the victim told her mother what defendant had done to her, but neither of them immediately called the police out of fear that defendant would retaliate. A neighbor testified that he saw the victim and defendant leave the apartment on the day of the incident and that the victim \"did not look good.\" A physician at Albany Medical Center testified that he treated the victim when she arrived at the hospital. He testified that \"she had bruising to her face, throat and her jaw was throbbing\" and had neck bruising that was consistent with strangulation. Testing revealed that her jaw was fractured. The physician recalled that the victim told him \"her boyfriend choked her during the assault\" and \"knocked [her] out\" but she refused to allow him to call the police. Another physician testified that there were visible fractures on the victim's face, which resulted from \"significant trauma.\" The victim testified that she called the police four days after the incident and, in the days after that, observed one of defendant's brothers in an SUV \"sitting outside of [her] apartment for hours.\" A friend of defendant also called the victim; he said that he was \"calling for\" defendant, told her not to testify, and promised \"whatever [she] needed, money or weed\" in exchange for her silence. Regarding the issue of legal sufficiency concerning the kidnapping conviction, defendant argues that the evidence does not support a finding that he abducted the victim. As relevant here, the term \"[a]bduct\" is defined as \"restrain[ing] a person with intent to prevent his [or her] liberation by either (a) secreting or holding him [or her] in a place where he [or she] is not likely to be found, or (b) using or threatening to use deadly physical force\" (Penal Law § 135.00 [2]). Here, there was significant evidence to support a finding that the victim was secreted in a place in which she was unlikely to be found, both when she was riding in the Jeep and when she was in the unfinished apartment ( see People v Delp , 156 AD3d 1450 , 1452 [4th Dept 2017], lv denied 31 NY3d 983 [2018]; People v Manning , 151 AD3d 1936 , 1937-1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]). Additionally, the victim testified that defendant accomplished his restraint by threatening to kill her. Certainly, viewed in the light most favorable to the People ( see People v Contes , 60 NY2d 620, 621 [1983]), the evidence is legally sufficient to support the kidnapping conviction. Likewise, we find no merit to defendant's assertion that the verdict is against the weight of [*4] the evidence. Although a different verdict might not have been unreasonable, as the victim gave varying accounts of the incident, the issue of her credibility was fully explored at trial. There was nothing incredible or inherently unbelievable about the victim's testimony and she explained that her initial reluctance to identify defendant as the perpetrator stemmed from her fear of retaliation, which testimony the jury was free to credit. The victim's testimony as to the attack itself was certainly supported by physical evidence—she suffered a broken jaw, a concussion, several missing teeth and bruises all over her body. According due deference to the jury's resolution of credibility issues, we find no basis to disturb the verdict ( see People v Cummings , 188 AD3d 1449 , 1453 [3d Dept 2020], lv denied 36 NY3d 1096 [2021]; People v Hadfield , 119 AD3d 1217 , 1220 [3d Dept 2014], lv denied 25 NY3d 989 [2015]; People v Reynolds , 81 AD3d 1166 , 1167 [3d Dept 2011], lv denied 16 NY3d 898 [2011]). [FN*] Defendant's contention that his conviction for kidnapping in the second degree is precluded under the merger doctrine is unpreserved and we decline to exercise our interest of justice jurisdiction to modify the judgment on that basis ( see People v Bonilla , 229 AD3d 850 , 853-854 [3d Dept 2024]). As an explanation for such determination, defendant's reliance on the merger doctrine is unavailing, given that his hours-long abduction and restraint of the victim was not \"simultaneous and inseparable\" from the other crimes but, rather, was \"a crime in itself\" ( People v Gonzalez , 80 NY2d 146, 153 [1992]; see People v Place , 152 AD3d 976 , 980 [3d Dept 2017], lv denied 30 NY3d 1063 [2017]; People v Thorpe , 141 AD3d 927 , 932 [3d Dept 2016], lv denied 28 NY3d 1031 [2016]). To be sure, the evidence at trial demonstrated that defendant forcibly prevented the victim from leaving her Jeep by threatening her life and then transported her to the unfinished apartment, where he assaulted her to the point of unconsciousness, sodomized, raped and strangled her. Finally, we reject defendant's contention that his sentence is unduly harsh and severe. Initially, defendant's argument that County Court punished him for invoking his constitutional right to testify at trial is unpreserved for this Court's review, as it was not raised at sentencing ( see People v Martinez , 144 AD3d 1326 , 1326 [3d Dept 2016], lv denied 28 NY3d 1186 [2017]). In any event, we have carefully reviewed the court's comments made during the sentencing proceeding and do not find that the court considered any inappropriate factors in imposing the sentence. A review of the record also reveals that County Court specifically considered defendant's traumatic childhood in imposing the sentence, while also giving due regard to his past criminal history and the brutality of his attack on the victim. Given the seriousness of defendant's conduct and the fact that the sentence imposed was less than the maximum allowable, we do [*5] not find that the sentence was unduly harsh or severe so as to warrant invoking our intent of justice jurisdiction to reduce it ( see CPL 470.15 [6] [b]; People v King , 225 AD3d 937 , 938 [3d Dept 2024]). Accordingly, the judgment of conviction is in all respects affirmed. Clark, J.P., Pritzker, Ceresia and Fisher, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: Specific to the witness tampering conviction, the victim testified that an associate of defendant, who told her that he was \"calling for\" defendant, attempted to dissuade her from testifying by offering her financial rewards. Viewing the evidence in a neutral light, this conviction is also supported by the weight of the evidence ( see People v Rahaman , 189 AD3d 1709 , 1712 [3d Dept 2020], lv denied 36 NY3d 1059 [2021]). "
},
{
"from": "gpt",
"value": "The\nkidnapping merger doctrine does not apply where, as here, defendant\nabducted and restrained his victim for hours before he sexually assaulted\nher. The kidnapping was not simultaneous and inseparable from the other\ncrimes; it was a crime in and of itself."
}
]
|
2024.03497 | [
{
"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 Maraj 2024 NY Slip Op 03497 [228 AD3d 958] June 26, 2024 Appellate Division, Second 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 Jelani Maraj, Appellant. Metcalf & Metcalf, P.C., New York, NY (Steven A. Metcalf II of counsel), for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Judith R. Sternberg, Hilda Mortensen, and Sarah S. Rabinowitz of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Nassau County (Robert A. McDonald, J.), rendered January 27, 2020, convicting him of predatory sexual assault against a child and endangering the welfare of a child, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant contends that he was deprived of his rights to due process and equal protection because he was prosecuted for predatory sexual assault against a child, a class A-II felony (Penal Law § 130.96), even though the same conduct also constituted the offense of course of sexual conduct against a child in the first degree, a class B felony (Penal Law § 130.75). This contention is without merit. \"The law 'provides the prosecutor with broad discretion to decide what crimes to charge' and 'overlapping' criminal statutes [without more] do not violate the defendant's constitutional rights\" ( People v Greene , 57 AD3d 1004 , 1005 [2008], quoting People v Eboli , 34 NY2d 281, 287 [1974]; see People v Urbaez , 10 NY3d 773 , 775 [2008]; People v Eboli , 34 NY2d 281, 287 [1974]; People v Lawrence , 81 AD3d 1326 , 1326-1327 [2011]). Contrary to the defendant's contention, the County Court did not improvidently exercise its discretion in precluding evidence concerning the victim's alleged sexual history under the Rape Shield Law ( see CPL 60.42). \"A trial court's rape-shield ruling will be upheld unless it was an improvident exercise of the court's discretion, and deprived the defendant of his [or her] right of confrontation\" ( People v Tohom , 109 AD3d 253 , 274 [2013]). Here, the defendant's offer of proof as to whether the victim had engaged in sexual conduct with other individuals that might have explained certain physical injuries she sustained to her genital area was purely based upon rumor and speculation. This offer of proof was therefore insufficient to overcome the presumption that such evidence should be precluded pursuant to the Rape Shield Law ( see id. ; People v Wieners , 33 AD3d 637 , 638 [2006]). Contrary to the defendant's additional contention, the County Court did not err in denying his motion pursuant to CPL 330.30 (2) to set aside the verdict based upon juror misconduct. \"Under CPL 330.30 (2), a motion to set aside a verdict may be granted when it is shown that improper conduct by a juror 'may have affected a substantial right of the defendant' \" ( People v Clark , 81 NY2d 913, 914 [1993]). \"Generally, a jury verdict may not be impeached by proof of the tenor [*2] of its deliberations, but it may be upon a showing of improper influence\" ( People v Brown , 48 NY2d 388, 393 [1979]; see People v Maragh , 94 NY2d 569, 573 [2000]; People v Veliz , 222 AD3d 785 , 786 [2023]); that is, \"where the jury has been improperly influenced by matters going beyond the scope of the trial evidence\" ( People v Lehrman , 155 AD2d 693, 694 [1989]; see People v Brown , 48 NY2d at 393; People v Veliz , 222 AD3d at 786). However, \"not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically\" ( People v Brown , 48 NY2d at 394; see People v Clark , 81 NY2d at 914). \"Each case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered\" ( People v Clark , 81 NY2d at 914). Here, in support of his motion to set aside the verdict, the defendant submitted, among other things, an affidavit from an alternate juror, who did not deliberate, averring that certain improper comments were made by the jurors prior to deliberations. The defendant also submitted an affirmation from defense counsel relating statements made to defense counsel by a courtroom observer who had spoken to some of the jurors after the trial and was allegedly told of certain juror misconduct. The County Court thereafter held a lengthy hearing on the motion, at which the testimony of the deliberating jurors was taken, and that testimony contradicted the averments and the hearing testimony of the alternate juror, as well as the hearing testimony of the courtroom observer. The deliberating jurors who testified denied that the improper comments were made and confirmed that their verdict was based upon the trial evidence and was not affected by outside influences. Under the circumstances, the court, crediting the testimony of the deliberating jurors, properly determined that the defendant failed to demonstrate a likelihood of prejudice to a substantial right so as to warrant setting aside the verdict ( see People v Samandarov , 13 NY3d 433 , 437-438 [2009]; People v Veliz , 222 AD3d at 787; People v Murphy , 218 AD3d 795 [2023]; People v Mack , 224 AD2d 448, 449 [1996]; People v Lehrman , 155 AD2d at 694). The defendant's remaining contentions are without merit. Iannacci, J.P., Chambers, Wooten and Wan, JJ., concur."
},
{
"from": "gpt",
"value": "Not\nimproper to prosecute defendant for predatory sexual assault against a\nchild, a class A-II felony (Penal Law § 130.96), even though the same\nconduct also constituted the offense of course of sexual conduct against a\nchild in the first degree, a class B felony (Penal Law § 130.75).\n\"The law\n'provides the prosecutor with broad discretion to decide what crimes to\ncharge' and 'overlapping' criminal statutes [without more] do not violate\nthe defendant's constitutional rights [citations omitted].\n\""
}
]
|
2024.51425 | [
{
"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\n[*1] People v Muller (Victoria) 2024 NY Slip Op 51425(U) Decided on October 18, 2024 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on October 18, 2024 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Tisch, J.P., James, Perez, JJ. 570071/20 The People of the State of New York, Respondent, against Victoria Muller, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Jeffrey M. Zimmerman, J.), rendered January 13, 2020, after a jury trial, convicting her of obstructing governmental administration in the second degree and resisting arrest, and imposing sentence. Per Curiam. Judgment of conviction (Jeffrey M. Zimmerman, J.), rendered January 13, 2020, affirmed. The information charging obstructing governmental administration in the second degree ( see Penal Law § 195.05), was not jurisdictionally defective. Nonhearsay allegations established every element of the offense and defendant's commission thereof ( see CPL 100.40[1][c]; People v Middleton , 35 NY3d 952 , 954 [2020]). The instrument recited that inside 265 East 161st Street, Bronx County, at 10:20 a.m., the deponent court officer, while conducting security scans by the magnetometers, \"instructed defendant numerous times to remove her hat so she could put it through the machine, which defendant repeatedly refused to do\"; and that when instructed \"to step to the side or she would have to leave,\" defendant \"again refused to follow\" the officer's instructions. These allegations and the reasonable inferences to be drawn from them were sufficient for pleading purposes to establish that defendant physically interfered with and disrupted the official function performed by the court officers ( see Penal Law § 195.05). Contrary to defendant's present claims, the allegations that she repeatedly refused to remove her hat and put it through the magnetometer, and then refused to step aside or leave, satisfied the requirement that the interference must be \"in part at least, physical in nature\" ( People v Dumay , 23 NY3d 518 , 524 [2014], quoting People v Case , 42 NY2d 98, 102 [1977]; see People v Romeo, 9 AD3d 744 , 745 [2004][interference sufficient to establish the crime of obstructing governmental administration in the second degree includes inappropriate and disruptive conduct at the scene of the performance of an official function]; People v Barrett , 179 Misc 2d 261 [1998] [refusal to move through the magnetometer impeding others from entering [*2] the courthouse constituted second-degree obstruction of governmental administration]). Nor was the accusatory instrument rendered infirm by the absence of an additional allegation that the underlying magnetometer duties performed by the court officer were \"authorized\" ( see People v Pappalardo , 180 Misc 2d 707 [App Term, 1st Dept 1999]; People v Contino , 26 Misc 3d 141 [A], 2010 NY Slip Op 50343[U] [App Term, 1st Dept 2010], lv denied 15 NY3d 803 [2010]). Since defendant's arrest for second degree obstructing governmental administration was authorized, her struggle to avoid being handcuffed constituted resisting arrest ( see Matter of Miguel R. , 74 AD3d 548 [2010]). The court properly denied defendant's application pursuant to Batson v Kentucky , 476 US 79, 93—96 (1986). As defendant concedes, the People provided race neutral reasons for their challenges, and record supports the court's finding that the nondiscriminatory reasons provided by the People for the challenges in question were not pretextual, including that one panelist arrived \"a number of minutes late\" ( see People v Duncan , 177 AD2d 187, 193 [1992], lv denied 79 NY2d 1048 [1992]), and another was flippant on voir dire ( see People v Cruz , 228 AD3d 1019 [2024]; see also United States v Biaggi , 853 F 2d 89, 96 [2d Cir 1988], cert den 489 US 1052 [1989]). Given the great deference afforded the fact-finding court due to its ability to assess the credibility of the attorney and the demeanor of the panelists, we find no basis to conclude the court erred in this determination ( see People v Wright , — NY3d &mdash, 2024 NY Slip Op 03320 [2024]; People v Hecker , 15 NY3d 625 , 663-665 [2010]; People v Hernandez , 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: October 18, 2024"
},
{
"from": "gpt",
"value": "Repeatedly refusing to remove hat and put it through the magnetometer,\nand then refusing to step aside or leave, satisfied the requirement that the\ninterference must be \"in part at least, physical in nature\" and such interference includes inappropriate and disruptive conduct at the scene of\nthe performance of an official function."
}
]
|
2024.05353 | [
{
"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 Blackwood 2024 NY Slip Op 05353 [231 AD3d 1165] October 30, 2024 Appellate Division, Second 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, Appellant, v Phillip Blackwood, Respondent. Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for appellant. Clare J. Degnan, White Plains, NY (Marquetta Christy of counsel), for respondent. Appeal by the People from an order of the Supreme Court, Westchester County (Susan M. Capeci, J.), entered September 29, 2023. The order, insofar as appealed from, in effect, upon reargument, adhered to the original determination in an order of the same court entered July 19, 2023, granting that branch of the defendant's omnibus motion which was pursuant to CPL 210.20 and 210.30 to dismiss the indictment. Ordered that the order entered September 29, 2023, is reversed insofar as appealed from, on the law, and, upon reargument, so much of the order entered July 19, 2023, as granted that branch of the defendant's omnibus motion which was pursuant to CPL 210.20 and 210.30 to dismiss the indictment is vacated, and thereupon, that branch of the defendant's omnibus motion is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on the indictment. On March 7, 2023, an indictment was filed charging the defendant with criminal contempt in the first degree (Penal Law § 215.51 [c]), and on March 9, 2023, the defendant was arraigned on that charge. In May 2023, in an omnibus motion, the defendant moved, inter alia, pursuant to CPL 210.20 and 210.30 to dismiss the indictment on the grounds that the proof submitted to the grand jury was legally insufficient and that the grand jury proceeding was defective. The People opposed. By order entered July 19, 2023, the Supreme Court granted that branch of the defendant's omnibus motion. The People then moved for leave to reargue their opposition to that branch of the defendant's omnibus motion. By order entered September 29, 2023, the court, in effect, granted reargument and, upon reargument, adhered to its original determination. The People appeal. \"[T]he denial of a motion for leave to reargue is not appealable\" ( Matter of Lillian G. [Steven G.—Gary G.] , 208 AD3d 871 , 874 [2022]; see Brilliantine v East Hampton Fuel Oil Corp. , 221 AD3d 951 , 952 [2023]; Bank of N.Y. Mellon v Lewis , 200 AD3d 969 , 970 [2021]). Contrary to the defendant's contention, the Supreme Court, in the order entered September 29, 2023, in fact reconsidered the People's opposition to the subject branch of the defendant's omnibus motion. Therefore, the court, in effect, granted reargument, but adhered to its original determination. As such, an appeal properly lies from that order ( see People v Taback , 216 AD3d 673 , 674 [2023]; People v Sturges , 164 AD3d 616 , [*2] 617-618 [2018]; People v Sadowski , 173 AD2d 873, 873 [1991]). \" 'To dismiss an indictment on the basis of insufficient evidence before a Grand Jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury' \" ( People v Jessup , 90 AD3d 782 , 783 [2011], quoting People v Bello , 92 NY2d 523, 525 [1998]). \"Legally sufficient evidence is defined as 'competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof' \" ( id. , quoting CPL 70.10 [1]; see People v Deitsch , 97 AD2d 327, 329 [1983]). \" 'In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt' \" ( People v Jessup , 90 AD3d at 783, quoting People v Bello , 92 NY2d at 526). \"Thus, '[t]he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference' \" ( id .). A defendant had actual knowledge of the contents of a subject order of protection where \"the evidence established that the defendant was present at the proceeding where the order of protection was issued, [his or her] attention was drawn to the issuance of the order by the court, and a copy of the order was provided to [him or her]\" ( People v James , 135 AD3d 787 , 788 [2016]; see People v Clark , 95 NY2d 773, 775 [2000]; People v Aveni , 100 AD3d 228 , 241 [2012]). Here, the evidence viewed in the light most favorable to the People, if uncontradicted, established, prima facie, that the defendant had knowledge of the prohibited conduct and nevertheless violated the order of protection by not staying away from the protected party ( see People v Bello , 92 NY2d at 525; People v Jessup , 90 AD3d at 783). The order of protection established that the defendant was personally served with the order of protection in court and that he was advised in court of the issuance and contents of the order, and the order of protection contains the defendant's signature ( see People v Clark , 95 NY2d at 775; People v James , 135 AD3d at 788). Although the box alongside \"Stay away from\" was not checked, the protected party's name was typed in the space following that check box and all six subcategories of that section were checked ( cf. People v Hopkins , 275 AD2d 667 [2000]). As such, the defendant was not entitled to dismissal of the indictment on the ground that the evidence submitted to the grand jury was legally insufficient. Pursuant to CPL 210.35 (5), \"[a]n indictment should be dismissed where the grand jury proceeding is defective such that it 'fails to conform to the requirements of article one hundred ninety [of the Criminal Procedure Law] to such degree that the integrity thereof is impaired and prejudice to the defendant may result' \" ( People v Nicholson , 210 AD3d 1009 , 1010 [2022]; see CPL 210.20 [1] [c]; 210.35 [5]; People v Thompson , 22 NY3d 687 , 699 [2014]). \" 'The exceptional remedy of dismissal . . . under CPL 210.35 (5) should . . . be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury' \" ( People v Miles , 76 AD3d 645 , 645 [2010], quoting People v Huston , 88 NY2d 400, 409 [1996]). Here, it would not be impossible for the People to obtain a conviction against the defendant ( see People v Gordon , 88 NY2d 92, 97-98 [1996]; People v Swamp , 84 NY2d 725, 732 [1995]). Furthermore, the People's presentation of evidence to the grand jury was proper ( see CPL 210.20 [1] [c]; 210.35 [5]; People v Thompson , 22 NY3d at 699; People v Nicholson , 210 AD3d at 1010; People v Miles , 76 AD3d at 645). Accordingly, upon reargument, the Supreme Court should have denied that branch of the defendant's omnibus motion which was pursuant to CPL 210.20 and 210.30 to dismiss the indictment. Connolly, J.P., Ford, Love and McCormack, JJ., concur."
},
{
"from": "gpt",
"value": "App. Div. reinstated indictment dismissed by trial court. Viewed in the\nlight most favorable to the People, the evidence, if uncontradicted,\nestablished, prima facie, that the defendant had knowledge of the\nprohibited conduct and nevertheless violated the order of protection by not\nstaying away from the protected party. The order of protection established\nthat the defendant was personally served with the order of protection in\ncourt and that he was advised in court of the issuance and contents of the order, and the order of protection contains the defendant's signature.\nAlthough the box alongside \"Stay away from\" was not checked, the\nprotected party's name was typed in the space following that check box\nand all six subcategories of that section were checked. Hence, the evidence\nbefore the grand jury was legally sufficient."
}
]
|
2024.05162 | [
{
"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 Rock 2024 NY Slip Op 05162 [231 AD3d 1315] 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 Donald Rock, Appellant. LaMarche Safranko Law PLLC, Cohoes (Joshua R. Friedman of counsel), for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jennifer C. Manning of counsel), for respondent. Aarons, J. Appeal from a judgment of the County Court of Clinton County (Keith M. Bruno, J.), rendered July 23, 2021, upon a verdict convicting defendant of the crimes of falsifying business records in the first degree and attempted criminal purchase of a weapon. In June 2019, defendant tried to buy a shotgun at a store in Clinton County, a transaction that requires a purchaser to complete Form 4473 published by the Bureau of Alcohol, Tobacco, Firearms and Explosives (hereinafter the ATF form) for the purpose of conducting a background check on the National Instant Criminal Background Check System (hereinafter NICS). Question 11.h of the ATF form asks, \"Are you subject to a court order restraining you from harassing, stalking or threatening your child or an intimate partner or child of such partner?\" In conformity with 18 USC § 922, the instructions for question 11.h specify that a person must answer \"yes\" if the court order \"was issued after a hearing which the person received actual notice of and had an opportunity to participate in.\" Defendant checked the box indicating \"[n]o.\" Defendant did not pass the NICS background check, and the store did not sell him the shotgun. Investigation of the denied purchase revealed an August 19, 1993 restraining order, without an expiration date, issued against defendant by a New Jersey court in favor of defendant's former spouse. Alleging that defendant knew he was barred from possessing a firearm because of an existing order of protection and lied on his ATF form to unlawfully buy one anyway, the People charged him by indictment with falsifying business records in the first degree and attempted criminal purchase of a weapon ( see Penal Law §§ 110.00, 175.10, 265.17 [1]). Following a jury trial, defendant was found guilty as charged and sentenced to probation. Defendant appeals. We reverse. Initially, defendant's motion for a trial order of dismissal \"was not premised on the specific grounds upon which defendant now relies and, as such, his challenge to the legal sufficiency of the evidence is unpreserved\" ( People v Gentry , 218 AD3d 919 , 921 [3d Dept 2023] [internal quotation marks and citation omitted], lv denied 40 NY3d 1012 [2023]). Defendant also contends that the verdict is against the weight of the evidence, which necessarily requires us to assess whether the People proved all elements of the charged crimes beyond a reasonable doubt ( see People v Ashe , 208 AD3d 1500 , 1501 [3d Dept 2022], lv denied 39 NY3d 961 [2022]). As to attempted criminal purchase of a weapon, \"[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime\" (Penal Law § 110.00; see People v Hiedeman , 189 AD3d 1902 , 1903-1904 [3d Dept 2020], lv denied 36 NY3d 1120 [2021]). \"A person is guilty of criminal purchase . . . of a weapon when . . . [, k]nowing that he or she is prohibited by law from possessing a firearm, rifle or shotgun because [*2] of a prior conviction or because of some other disability which would render him or her ineligible to lawfully possess a firearm, rifle or shotgun in this state . . . , such person purchases or otherwise acquires a firearm, rifle or shotgun from another person\" (Penal Law § 265.17 [1]). As to which law disables defendant from possessing a shotgun, 18 USC § 922 (g) (8) prohibits the possession of a firearm by a person \"who is subject to a court order that . . . was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate\" and \"restrains such person from . . . engaging in . . . conduct that would place an intimate partner in reasonable fear of bodily injury to the partner.\" Further, \"[a] person is guilty of falsifying business records in the first degree when he [or she] commits the crime of falsifying business records in the second degree, and when his [or her] intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof\" (Penal Law § 175.10; accord People v Park , 163 AD3d 1060 , 1062 [3d Dept 2018]). \"A person is guilty of falsifying business records in the second degree when, with intent to defraud, he [or she] . . . [m]akes or causes a false entry in the business records of an enterprise\" (Penal Law § 175.05 [1]). To start, the People never produced for trial the August 19, 1993 restraining order, nor could any witness testify to the conditions under which it was issued. Therefore, an acquittal would not have been unreasonable, requiring us to \"view the evidence in a neutral light and weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony\" ( People v Houghtaling , 82 AD3d 1493 , 1494 [3d Dept 2011] [internal quotation marks and citations omitted], lv denied 17 NY3d 806 [2011]; see People v Gibson , 118 AD3d 1157 , 1159 [3d Dept 2014], lv denied 23 NY3d 1062 [2014]). The trial record includes a temporary restraining order dated August 14, 1993, (hereinafter the TRO) issued ex parte against defendant in favor of his former wife. The TRO directs the parties to appear for a final hearing on August 19, 1993. Although the NICS verification report indicated one restraining order issued on August 19, 1993, the State Police investigator who looked into defendant's 2019 denial could not find an order from that date and never attempted to obtain it. Another State Police investigator testified that defendant attempted to purchase a firearm in 2010 and was denied based upon the same purported August 19, 1993 restraining order. The 2010 investigator testified that he, too, did not obtain the purported August 19, 1993 order, but he \"believe[d]\" he saw a copy in an ATF agent's file when they interviewed defendant and verified its existence with the agent. The People also produced for trial a final restraining order dated October 31, 1994, and a modification of [*3] a restraining order dated June 12, 1995, both issued by New Jersey courts against defendant in favor of his former wife. Both orders are in connection with a complaint filed August 17, 1993, and lack expiration dates. Those two orders note that defendant was present in court when they were issued, and that the \"restraints continued.\" Neither of those orders appeared during defendant's background checks in 2010 and 2019, nor were investigators aware of their existence. For his part, defendant testified that he did not believe there was an active order of protection against him when he submitted his ATF form in July 2019. Sitting as the proverbial thirteenth juror and \"weigh[ing] the evidence in light of the elements as charged to the other jurors\" ( People v Rogers , 94 AD3d 1246 , 1250 [3d Dept 2012] [internal quotations marks and citation omitted], lv denied 19 NY3d 977 [2012]), the People failed to prove beyond a reasonable doubt that defendant attempted to buy a shotgun knowing his possession of same was \"prohibited by law\" (Penal Law § 265.17 [1]). The TRO and 1994 and 1995 orders do not permit an inference that the purported August 19, 1993 restraining order was issued after a hearing where defendant had an opportunity to meaningfully participate or that he forfeited that opportunity by not appearing ( see 18 USC § 922 [g] [8]; United States v Kaspereit , 994 F3d 1202, 1212 [10th Cir 2021]; United States v Bramer , 956 F3d 91, 97-99 [2d Cir 2020]). To the extent the 1994 and 1995 orders could be the bases for defendant's conviction, the fact that those orders were issued after the purported August 19, 1993 restraining order but did not appear on defendant's 2010 and 2019 background checks means the absence of expiration dates on those orders is not proof beyond a reasonable doubt that those orders never expired and defendant knew they were active in 2019. In light of this conclusion, the jury was also not justified in finding that defendant falsified his ATF form by answering \"[n]o\" to question 11.h or that he did so with the requisite fraudulent intent ( see Penal Law §§ 175.05 [1]; 175.10; People v Parks , 53 AD3d 688 , 691 [3d Dept 2008]). Accordingly, defendant's convictions cannot stand, and his remaining contentions are academic. Egan Jr., J.P., Clark, Reynolds Fitzgerald and Fisher, JJ., concur. Ordered that the judgment is reversed, on the facts, and indictment dismissed."
},
{
"from": "gpt",
"value": "In June\n2019, defendant completed an ATF form and answered \"No,\n\" to the\nquestion: \"Are you subject to an Order restraining you from harassing,\nstalking or threatening your child, your intimate partner or the child of\nsuch intimate partner?\" There was information that on August 19, 1993, a\nrestraining order without expiration date was issued by a New Jersey court\nin favor of defendant's former spouse. The verdict of guilty of Attempted\nCriminal Purchase of a Firearm and Falsifying Business Records was set\naside because there was no evidence that the August 19, 1993, Order was\nissued after a hearing at which the defendant had a meaningful opportunity\nto participate or that he forfeited his opportunity to appear."
}
]
|
2024.05676 | [
{
"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 Morris 2024 NY Slip Op 05676 [232 AD3d 1239] November 15, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 8, 2025 [*1] The People of the State of New York, Respondent, v Damien Morris, Appellant. Paul G. Dell, Buffalo, for defendant-appellant. Michael J. Keane, Acting District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent. Appeal from a judgment of the Erie County Court (Susan M. Eagan, J.), rendered May 1, 2023. The judgment convicted defendant, upon a jury verdict, of assault in the first degree and criminal possession of a weapon in the second degree. It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of criminal possession of a weapon in the second degree and dismissing count 2 of the indictment, and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [1] [b]). We reject defendant's contention that County Court erred in permitting him to proceed pro se at trial. \"[A]n application to proceed pro se must be denied unless [the] defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel . . . To this end, trial courts must conduct a 'searching inquiry' to clarify that [the] defendant understands the ramifications of such a decision\" ( People v Stone , 22 NY3d 520 , 525 [2014]; see People v Abdullah , 194 AD3d 1346 , 1346 [4th Dept 2021], lv denied 37 NY3d 990 [2021]). \"In other words, a searching inquiry is required to warn [the] defendant of the risks inherent in [proceeding pro se] and to apprise [the defendant] of the value of counsel\" ( Abdullah , 194 AD3d at 1346 [internal quotation marks omitted]). We conclude that the court conducted an adequate searching inquiry before determining that defendant's waiver of the right to counsel was knowing, voluntary, and intelligent. Defendant relatedly contends that the waiver colloquy was inadequate because the court failed to inquire whether defendant was under the influence of medication. We reject that contention. We note that the court inquired whether defendant had \"ever received any treatment for a mental illness\" and whether defendant had \"received any treatment for a physical condition that ha[d] affected [his] ability to understand,\" and defendant responded in the negative to both inquiries. It is within the trial court's discretion to determine whether its searching inquiry should include \"a particularized assessment of [the] defendant's mental capacity when resolving [a] request to proceed pro se\" ( Stone , 22 NY3d at 529). In view of the whole record ( see People v Providence , 2 NY3d 579 , 583 [2004]), we conclude that the court did not abuse its discretion in declining to undertake further assessment of whether defendant suffered from any mental impairment as a result of medication. Defendant contends that he was denied a fair trial because the prosecutor, inter alia, made improper comments during the opening statement, elicited improper testimony in regard to defendant's selective silence, and made improper comments during summation on the court's denial of a justification charge. As defendant correctly concedes, that contention is unpreserved [*2] for appellate review, and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]; People v Miller , 204 AD3d 1438 , 1438 [4th Dept 2022], lv denied 40 NY3d 935 [2023]; see generally People v Pavone , 26 NY3d 629 , 638 [2015]). Finally, defendant contends that the evidence is legally insufficient to support the conviction of criminal possession of a weapon in the second degree because the People presented undisputed evidence that he had a valid firearm license, and thus the People necessarily failed to disprove beyond a reasonable doubt the defense that defendant was exempt from prosecution pursuant to Penal Law § 265.20 (a) (3). Although defendant failed to preserve that contention for our review ( see CPL 470.05 [2]; see generally People v Britton , 213 AD3d 1326 , 1328 [4th Dept 2023], lv denied 39 NY3d 1140 [2023]), under the circumstances of this case, including that the People do not oppose dismissal of the subject count, we exercise our power to address the unpreserved contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]). Inasmuch as the evidence presented at trial established that defendant was exempt from prosecution for criminal possession of a weapon pursuant to Penal Law § 265.20 (a) (3), we modify the judgment by reversing that part convicting defendant of criminal possession of a weapon in the second degree in violation of Penal Law § 265.03 and dismissing count 2 of the indictment ( see generally People v Parker , 52 NY2d 935, 936 [1981], revg on dissent below 70 AD2d 387, 391-394 [1st Dept 1979, Birns, J., dissenting]; People v Davis , 193 AD2d 954, 955-956 [3d Dept 1993]). Present—Smith, J.P., Bannister, Montour, DelConte and Hannah, JJ."
},
{
"from": "gpt",
"value": "Evidence was legally insufficient to support the conviction of criminal\npossession of a weapon in the second degree because the People presented\nundisputed evidence that he had a valid firearm license, and thus the\nPeople necessarily failed to disprove beyond a reasonable doubt the\ndefense that defendant was exempt from prosecution pursuant to Penal\nLaw § 265.20 (a) (3). Judgment modified by reversing that part convicting\ndefendant of criminal possession of a weapon in the second degree in\nviolation of Penal Law § 265.03 and dismissing count 2 of the indictment."
}
]
|
2024.05662 | [
{
"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 Walker 2024 NY Slip Op 05662 [232 AD3d 1214] November 15, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 8, 2025 [*1] The People of the State of New York, Appellant, v Chase Walker, Respondent. John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of counsel), for appellant. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan Hutchison of counsel), for defendant-respondent. Appeal from an order of the Supreme Court, Erie County (Paul Wojtaszek, J.), dated June 16, 2023. The order granted the motion of defendant to dismiss the indictment and dismissed the indictment. It is hereby ordered that the order so appealed from is reversed on the law, the motion dated March 13, 2023, is denied, the indictment is reinstated and the matter is remitted to Supreme Court, Erie County, for further proceedings on the indictment. Memorandum: In this prosecution arising from defendant's alleged assault of his parole officer, Supreme Court, by decision and order dated June 16, 2023 (original order), granted defendant's motion dated March 13, 2023, seeking, in effect, dismissal of the indictment on the ground that the People failed to provide all discovery required by CPL 245.20, which rendered any certificate of compliance improper, and thereby rendered any statement of trial readiness pursuant to CPL 30.30 illusory and resulted in a violation of defendant's statutory right to a speedy trial. The court subsequently issued an amended decision and order dated August 31, 2023 (amended order), which merely corrected a typographical error in the indictment number and added another tracking number, but was otherwise identical to the original order. While expressly noting in their notice of appeal, filed September 1, 2023, that the amended order made only typographical corrections to the original order, the People now purport to appeal from the amended order. We reject defendant's assertion that the People's appeal is untimely. The appeal properly lies from the original order because the amended order made only typographical corrections and thus \"did not effect a 'material or substantial change' to the [original] order\" ( People v Perez , 130 AD3d 1496 , 1496 [4th Dept 2015], quoting Matter of Kolasz v Levitt , 63 AD2d 777, 779 [3d Dept 1978]; see People v Nellons , 133 AD3d 1259 , 1260 [4th Dept 2015]). Under the circumstances of this case, we exercise our discretion in the interest of justice to treat the appeal as validly taken from the original order ( see CPL 460.10 [6]; People v Collins , 197 AD3d 904 , 905 [4th Dept 2021], lv denied 37 NY3d 1059 [2021]; People v McDowell , 255 AD2d 976, 976-977 [4th Dept 1998], lv denied 93 NY2d 855 [1999]). CPL 460.10 (1) (a) provides, in relevant part, that \"[a] party seeking to appeal . . . from an order of a criminal court not included in a judgment . . . must, . . . within [30] days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court . . . in which such order was entered a written notice of appeal, in duplicate, stating that such party appeals therefrom to a designated appellate court.\" The Court of Appeals has \"interpreted CPL 460.10 (1) (a) 'to require prevailing party service'—not just the handing out of an order by the court—'to commence the time for filing a notice of appeal' \" ( People v Jones , 22 NY3d 53 , 57 [2013], quoting People v Washington , 86 NY2d 853, 854 [1995]). Here, the record establishes that the People received a copy of the original order, but there is \"no evidence that [defendant] ever served the order as required by CPL 460.10 (1) (a)\" ( People v Spencer , 145 AD3d 1508 , 1509 [*2] [4th Dept 2016], lv denied 29 NY3d 1037 [2017]). Inasmuch as the record fails to establish that defendant ever served the People with a copy of the original order, the People's 30-day period to appeal never began to run and the People's appeal is therefore timely ( see Jones , 22 NY3d at 56-57; Washington , 86 NY2d at 854-855; Spencer , 145 AD3d at 1509). On the merits, the People contend that the court erred in determining that they violated their initial discovery obligations by failing to disclose the disciplinary records for the parole officer possessed by the Department of Corrections and Community Supervision (DOCCS). We agree. CPL article 245 initially requires the prosecution to automatically disclose to the defendant—i.e., without obligating the defendant to demand such discovery—\"all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control\" (CPL 245.20 [1]; see People v Bay , 41 NY3d 200 , 208 [2023]; William C. Donnino, Prac Commentaries, McKinney's Cons Laws of NY, CPL 245.10). The prosecution's initial discovery obligations are thus defined by a relevancy prong and a possessory prong ( see CPL 245.20 [1]). To meet the relevancy prong, the items and information must \"relate to the subject matter of the case\" ( id .). To meet the possessory prong, the items and information must be (A) \"in the possession, custody or control of the prosecution\" or (B) \"in the possession, custody or control of . . . persons under the prosecution's direction or control\" ( id .). For purposes of the possessory prong, \"all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution\" (CPL 245.20 [2]). As relevant here, the categories of material subject to disclosure include \"[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to . . . impeach the credibility of a testifying prosecution witness\" (CPL 245.20 [1] [k] [iv]). Subject to certain delineated caveats, \"the prosecution shall perform its initial discovery obligations under [CPL 245.20 (1)] as soon as practicable but not later than the time periods specified\" in the statute (CPL 245.10 [1] [a]; see Bay , 41 NY3d at 209). \"CPL 245.50 (1) creates a . . . compliance mechanism\" ( Bay , 41 NY3d at 209). That provision directs the prosecution to \"serve upon the defendant and file with the court a certificate of compliance\" when the prosecution, with several narrow exceptions, \"has provided the discovery required by [CPL 245.20 (1)]\" (CPL 245.50 [1]; see Bay , 41 NY3d at 209). \"The certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery\" (CPL 245.50 [1]). \"CPL 245.60 imposes a continuing duty to disclose, and when the [prosecution] provide[s] discovery after a [certificate of compliance] has been filed, [it] must file a supplemental [certificate of compliance]\" ( Bay , 41 NY3d at 209; see CPL 245.50 [1]). The statutory scheme \"tether[s] the [prosecution's] CPL article 245 discovery obligations to CPL 30.30's speedy trial requirements\" ( Bay , 41 NY3d at 209). With respect to trial readiness, the statute provides that \"[n]otwithstanding the provisions of any other law\" and \"absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of [CPL 30.30] until it has filed a proper certificate pursuant to [CPL 245.50 (1)]\" (CPL 245.50 [3]; see CPL 30.30 [5]; Bay , 41 NY3d at 210). \"Under the terms of the statute, the key question in determining if a proper [certificate of compliance] has been filed is whether the prosecution has 'exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery ' \" ( Bay , 41 NY3d at 211, quoting CPL 245.50 [1] [emphasis added]; see also CPL 245.20 [2]). Here, even assuming, arguendo, that the parole officer's disciplinary records from DOCCS met the relevancy prong as being related to the subject matter of the case, we conclude that the People established that those records did not meet the possessory prong required to prompt their initial discovery obligation with respect thereto ( see CPL 245.20 [1]; People v Walker , 228 AD3d 1318 , 1320 [4th Dept 2024]). \"[F]or the purposes of discovery, DOCCS is not a 'law enforcement' agency\" and is \" 'outside of the legal or practical control of local prosecutors' and, therefore, the People cannot be deemed to be in constructive possession of that [*3] which DOCCS possesses\" ( People v Jenne , 224 AD3d 953 , 957 [3d Dept 2024], lv denied 42 NY3d 927 [2024], quoting People v Kelly , 88 NY2d 248, 253 [1996]; see People v Howard , 87 NY2d 940, 941 [1996]). Inasmuch as the records were neither \"in the possession, custody or control of the prosecution,\" nor \"in the possession, custody or control of . . . persons under the prosecution's direction or control\" (CPL 245.20 [1]), nor \"deemed to be in the possession of the prosecution\" as \"items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency\" (CPL 245.20 [2]), the records were not part of the \"discovery required by [CPL 245.20 (1)]\" to be provided by the People as a predicate for filing a proper certificate of compliance (CPL 245.50 [1]). Consequently, the People's failure to provide the records at the time they served and filed their original and supplemental certificates of compliance does not render those certificates of compliance improper, and thus the People's statement of trial readiness pursuant to CPL 30.30 was not illusory and defendant's statutory right to a speedy trial was not violated on that ground. We note that, in resolving this appeal, we express no opinion regarding the concurrence's interpretation of the relevant statutory provisions regarding the availability or unavailability of the speedy trial remedy in any other context than the one presented in the case before us. Finally, defendant failed to preserve for our review his alternative ground for affirmance ( see CPL 470.05 [2]) and, in any event, we are precluded from reviewing it on the People's appeal inasmuch as the court did not make a finding adverse to the People on that distinct issue ( see CPL 470.15 [1]; People v Garrett , 23 NY3d 878 , 885 n 2 [2014], rearg denied 25 NY3d 1215 [2015]; People v Rafferty , 155 AD3d 1520 , 1522 [4th Dept 2017]). All concur except Curran, J., who concurs in the following memorandum. Curran, J. (concurring). I concur with the majority's memorandum in its entirety. I write separately to emphasize my view that, based on the structure of the relevant statutory provisions, and their cross-references to one another ( see e.g. CPL 245.20 [1]; 245.50 [1], [3]), the remedy of dismissal of the indictment under CPL 30.30 for the violation of a defendant's statutory right to a speedy trial—which is available when, inter alia, the People are deemed not ready for trial due to an invalid certificate of compliance and have exceeded the applicable statutory speedy trial time ( see CPL 245.50 [3])—is directly tied, and only directly tied, to the People's failure to comply with their \"[i]nitial discovery\" obligations as set forth in CPL 245.20 (1), which include any attendant due diligence obligations with respect to the items and information discoverable under that provision ( see CPL 245.20 [2]). Thus, inasmuch as the majority and I agree that the records at issue on appeal do not fall within the possessory prong of CPL 245.20 (1), I likewise agree that the remedy of dismissal under CPL 30.30 and 245.50 (3) is simply unavailable to defendant under the circumstances here. Present—Smith, J.P., Curran, Montour, Nowak and DelConte, JJ."
},
{
"from": "gpt",
"value": "County\nCt erred in holding that the People violated their initial discovery\nobligations by failing to disclose the disciplinary records for the parole\nofficer possessed by the Department of Corrections and Community\nSupervision (DOCCS). The People established that those records did not\nmeet the possessory prong required to prompt their initial discovery\nobligation. Reversed, Indictment reinstated."
}
]
|
2024.00524 | [
{
"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 Heverly 2024 NY Slip Op 00524 [224 AD3d 1243] February 2, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 3, 2024 [*1] The People of the State of New York, Respondent, v Joseph P. Heverly, Appellant. Banasiak Law Office, PLLC, Syracuse (Piotr Banasiak of counsel), for defendant-appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent. Appeal from a judgment of the Steuben County Court (Patrick F. McAllister, A.J.), rendered June 14, 2021. The judgment convicted defendant upon a jury verdict of bail jumping in the second degree. It is hereby ordered that the judgment so appealed from is unanimously reversed on the law, a new trial is granted and the matter is remitted to Steuben County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon a jury verdict of bail jumping in the second degree (Penal Law § 215.56), defendant contends that he is entitled to a new trial because County Court abused its discretion in denying his challenges for cause to two prospective jurors who expressed biases during voir dire. Defendant further contends that the People failed to comply with their discovery obligations under CPL article 245. We agree with defendant that he is entitled to a new trial. \"Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused\" ( People v Arnold , 96 NY2d 358, 363 [2001]; see People v Harris , 19 NY3d 679 , 685 [2012]; People v Chambers , 97 NY2d 417, 419 [2002]). Although CPL 270.20 (1) (b) \"does not require any particular expurgatory oath or 'talismanic' words . . . , [prospective] jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict\" ( Arnold , 96 NY2d at 362; see People v Mitchum , 130 AD3d 1466 , 1467 [4th Dept 2015]). Here, one of the prospective jurors at issue stated at the outset of voir dire that she was the mother of five children and that she would have a difficult time concentrating on the trial due to myriad family obligations. After some discussion with the prosecutor about whether child care arrangements could be made during the trial, the prospective juror raised another concern about her ability to serve as a juror, explaining that she was indecisive. When asked by the prosecutor whether she could follow the court's instructions and \"apply the law to the evidence,\" the prospective juror stated, \"[h]onestly, no.\" Later during voir dire, the prosecutor asked the prospective juror: \"Do you think you can do what you need to do to be a juror?\" The prospective juror answered \"[y]es.\" When defendant later challenged the prospective juror for cause, the court denied defendant's challenge, explaining that the prospective juror said \"I can\" when asked by the prosecutor whether she could serve on the jury. We conclude that the court abused its discretion in denying defendant's challenge for cause to the prospective juror ( see generally People v Betances , 147 AD3d 1352 , 1354 [4th Dept 2017]). As the People concede, the prospective juror's initial comments reflected \"a state of mind [*2] that [was] likely to preclude [her] from rendering an impartial verdict based upon the evidence adduced at the trial\" (CPL 270.20 [1] [b]). The question thus becomes whether she ultimately gave an \"unequivocal assurance\" that she could put aside the specific concerns she expressed and render an impartial verdict based on the evidence ( People v Johnson , 94 NY2d 600, 614 [2000]). We conclude that she did not. Indeed, the prospective juror never stated, unequivocally or otherwise, that she would follow the court's instructions and apply the law to the facts. Nor did she state that her child care concerns had been alleviated such that she could devote her undivided attention to the trial. Just as a \"general statement of impartiality that does not explicitly address the specific cause of the preexisting bias is not sufficient\" ( People v Cahill , 2 NY3d 14 , 76 [2003, Smith, J., concurring]), a general statement from a prospective juror that they can do what it takes to be a juror is not sufficient to rehabilitate the prospective juror where, as here, the prospective juror had previously offered specific reasons for being unable to serve impartially. We therefore conclude that the court abused its discretion in denying defendant's challenge for cause and, inasmuch as defendant exercised a peremptory challenge with respect to the prospective juror at issue and then exhausted all of his peremptory challenges, the denial of his challenge for cause constitutes reversible error ( see People v Padilla , 191 AD3d 1347 , 1348 [4th Dept 2021]; People v Hargis , 151 AD3d 1946 , 1948 [4th Dept 2017]). Because we are granting a new trial, we must address defendant's remaining contention related to CPL article 245. We agree with defendant that the People failed to comply with their discovery obligations under CPL 245.20, which became effective while the instant charges were pending ( see L 2019, ch 59, § 1, part LLL, § 2). Six days before trial and almost one year after the People filed their original certificate of compliance ( see CPL 245.50 [1]), the People filed a supplemental certificate of compliance ( see id . subd [1-a]), enclosing a court transcript from a prior proceeding. On the first day of trial, the People provided defense counsel with additional documents, including a police incident report, a notice of arraignment and two additional court transcripts from prior proceedings. Defense counsel objected to the untimely disclosure, specifically citing CPL article 245, but the court stated that the trial was \"going forward.\" During the testimony of the People's second witness, who was the prosecutor on the underlying drug charges with respect to which defendant had failed to appear, the People sought to introduce a one-page photocopy of notes the prosecutor had made on his case file. Those notes had never been disclosed to the defense. In response to defense counsel's objections related to, inter alia, CPL article 245, the prosecutor argued that his failure to disclose the notes was a mere Rosario violation that could be cured. The court agreed and provided defense counsel with additional time to review the document and prepare cross-examination questions. Having lost his bid to exclude the document, defense counsel requested certain redactions, to which the People stipulated. We agree with defendant that, by proposing redactions, he did not waive his initial objections to the case notes. On appeal, the People maintain their position that the Rosario violation was cured and, as a result, reversal is not warranted ( see People v Socciarelli , 203 AD3d 1642 , 1643 [4th Dept 2022], lv denied 38 NY3d 1035 [2022]). Where \"there is an issue of delayed disclosure of Rosario material, reversal is required [under Rosario ] only 'if the defense is substantially prejudiced by the delay' \" ( id. , quoting People v Martinez , 71 NY2d 937, 940 [1988]). Here, however, the failure to disclose the case notes also constitutes a violation of CPL 245.20 (1) inasmuch as those notes \"relate to the subject matter of the case and [were] in the possession, custody or control of the prosecution\" ( id .). We agree with defendant that CPL article 245 broadened the scope of automatic discovery to include Rosario material ( see People v Faison , 73 Misc 3d 900 , 909 [Crim Court, Kings County 2021]). \"[A] plain reading of the statute indicates a broader interpretation of CPL 245.20 . Rosario material relates 'to the subject matter of the witness' testimony ' (emphasis added), in contrast to the more encompassing requirement of CPL 245.20 to disclose all material related to the subject matter of the case \" ( id .). Moreover, \"[t]he purpose of and justification for article 245 was specifically to eliminate 'trial by ambush' and to remedy . . . inequities by mandating earlier and broader discovery obligations by the prosecution, increasing efficiency in prosecutions and fairness to both sides\" ( People v Godfred , 77 Misc 3d 1119 , 1124 [Crim Ct, Bronx County 2022]). Such open disclosure was enacted, in part, to enhance \"defendants' ability [*3] to reach reasonable pretrial dispositions of their cases precisely because [under the old discovery rules] they lacked sufficient early access to the evidence against them\" ( id .). We further agree with defendant that the prosecutor's failure to timely disclose the three transcripts constituted a violation of CPL article 245 even if those documents were equally available to both the prosecution and the defense. The People do not dispute that, at some point, the transcripts came into the prosecutor's possession and that those transcripts related to the subject matter of the case. Although the prosecutor submitted a supplemental certificate of compliance and disclosed one of the three transcripts six days before trial, he did not turn over to the defense the other two transcripts. CPL 245.20 (2) requires the prosecutor to \"make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; . . . the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain\" (emphasis added). There is no evidence that the transcripts were obtained by subpoena duces tecum. Although transcripts that are not in the People's possession and control are not subject to Brady and Rosario disclosure requirements ( see People v McGuire , 196 AD3d 1155 , 1156 [4th Dept 2021], lv denied 37 NY3d 1163 [2022], denied reconsideration 39 NY3d 964 [2022]), that fact is of no moment for purposes of CPL 245.20. Even where documents are \"beyond the prosecutor's control under Rosario and constructive possession under CPL 245.20 (2), the presumption of openness (CPL 245.20 [7]), the duty to maintain the flow of information (CPL 245.55), the continuing duty to disclose (CPL 245.60), and, perhaps most importantly, the goals of article 245 require that when the prosecutor becomes aware [after making the requisite reasonable inquiries] that an agency outside their control holds information that relates to the subject matter of the case, best practice dictates that the People take steps . . . to obtain those records notwithstanding the fact [that] the information may be available to the defendant by equivalent process \" ( People v Weiss , 79 Misc 3d 931 , 936 [Crim Ct, Queens County 2023] [emphasis added]; see People v Soto , 72 Misc 3d 1153 , 1160-1161 [Crim Ct, NY County 2021]; see also People v Mercado , 80 Misc 3d 430 , 441-443 [Sup Ct, Queens County 2023]). CPL 245.20 (2) does not relieve the People of their disclosure requirement where, as here, the \"discovery material at issue is within the People's custody and control, [and does not require them to] resort to a subpoena\" ( Soto , 72 Misc 3d at 1161; cf. People v Lustig , 68 Misc 3d 234 , 243-244 [Sup Ct, Queens County 2020]). Inasmuch as the People violated CPL 245.20, it was incumbent upon the court to impose a remedy or sanctions proportionate to the prejudice suffered by defendant ( see CPL 245.80 [1]). While the court may have provided a remedy for the Rosario violation arising from the People's failure to turn over the case notes, it did not provide any remedy or sanction for the discovery violations. We thus conclude that, upon remittal for a new trial, the court should impose any remedies or sanctions it deems appropriate under CPL 245.80. Present—Smith, J.P., Lindley, Montour, Greenwood and DelConte, JJ."
},
{
"from": "gpt",
"value": "Trial court gave defense counsel time to review prosecution witness's\nbelatedly disclosed, case notes before he began cross-examination, but did\nnot consider what sanction or remedy would be appropriate under CPL\n245.80 for other failures to turn over prior statements, etc.. At new trial\nordered for a different reason, court should make that CPLS 245.80\nassessment."
}
]
|
2024.05313 | [
{
"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 Johnson 2024 NY Slip Op 05313 [231 AD3d 652] October 29, 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 Austin Johnson, Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Benjamin Rutkin-Becker of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Max Bernstein of counsel), for respondent. Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered May 4, 2022, as amended on May 10, 2022, convicting defendant, after a jury trial, of criminal sexual act in the first degree and assault in the second degree, and sentencing him to an aggregate term of 15 years, followed by 20 years of postrelease supervision, unanimously affirmed. The court correctly denied defendant's request for an intoxication charge because he failed to present \"sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis\" ( People v Sirico , 17 NY3d 744 , 745 [2011]). While the victim testified that defendant was very drunk, defendant presented no details regarding the \"number of drinks he had\" \"whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, [or] the specific impact of the alcohol upon his behavior or mental state\" ( People v Gaines , 83 NY2d 925, 927 [1994]; compare People v Velcher , 116 AD3d 799 [2d Dept 2014], lv withdrawn 24 NY3d 1047 [2014]). Additionally, the evidence of \"the period of time during which [the drinks] were consumed\" and \"the lapse of time between consumption\" and the attack was vague ( Gaines , 83 NY2d at 927). In any event, any error was harmless because there was overwhelming evidence of defendant's intent, and there was no significant probability that the jury would have acquitted defendant had it been given an intoxication charge ( see People v Crimmins , 36 NY2d 230, 241-242 [1975]; see e.g. People v Martinez , 18 AD3d 343 , 344 [1st Dept 2005], lv denied 5 NY3d 808 [2005]). The court should have granted defendant's request for an adverse inference charge based on the People's failure to disclose the property voucher from defendant's cell phone ( see CPL 245.20 [1] [m]; 245.80 [1]; People v Handy , 20 NY3d 663 , 665 [2013]). Because the police destroyed the evidence by selling defendant's phone at auction, the adverse inference charge was \"mandatory upon request\" ( People v Viruet , 29 NY3d 527 , 532 [2017]). However, we find that this error was harmless ( see id. at 533). Defendant failed to preserve his claim that the People committed a Brady violation ( see People v Anderson , 205 AD2d 399, 400 [1st Dept 1994], lv denied 84 NY2d 932 [1994]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We perceive no basis for reducing the sentence. Concur—Singh, J.P., Pitt-Burke, Higgitt, Rosado, O'Neill Levy, JJ."
},
{
"from": "gpt",
"value": "Court should have granted defendant's request for an adverse inference\ncharge based on the People's failure to disclose the property voucher from\ndefendant's cell phone. Because the police destroyed the evidence by\nselling defendant's phone at auction, the adverse inference charge was\nmandatory upon request. But harmless error."
}
]
|
2024.00654 | [
{
"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 Williams 2024 NY Slip Op 00654 [224 AD3d 998] February 8, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 3, 2024 [*1] The People of the State of New York, Respondent, v Colyn C. Williams, Appellant. Paul Skip Laisure, Garden City, for appellant. Kirk O. Martin, Special Prosecutor, Owego (Torrance L. Schmitz of counsel), for respondent. Lynch, J.P. Appeal from a judgment of the County Court of Broome County (Joseph F. Cawley, J.), rendered July 29, 2021, upon a verdict convicting defendant of the crime of assault in the second degree (two counts). On March 28, 2019, defendant was charged by felony complaint with attempted murder in the second degree and assault in the first degree upon allegations that he attacked his then-girlfriend and infant son with a knife. A grand jury indictment was handed up on May 13, 2019, charging defendant with only assault in the first degree and the People declared their readiness for trial that day. This indictment was dismissed on October 21, 2019, with leave to re-present. On December 3, 2019, another indictment was handed up charging defendant with two counts of assault in the first degree based upon the same incident, and the People again declared their readiness. Effective January 1, 2020, the Legislature \"enacted sweeping reforms that expanded and restructured disclosure obligations in criminal cases,\" the parameters of which the Court of Appeals recently reviewed in People v Bay (41 NY3d 200, 204 [Dec. 14, 2023]; see L 2019, ch 59, § 1, part LLL). CPL 245.20, titled \"[a]utomatic discovery,\" requires the prosecution to disclose to the defense \"all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control\" within certain expedited time frames (CPL 245.20 [1]). [FN1] \"To incentivize the People's compliance,\" the Legislature correspondingly amended CPL 30.30 (5) to require a statement of trial readiness to \" 'be accompanied or preceded by a certification of good faith compliance [hereinafter COC] with the disclosure requirements of CPL 245.20' \" ( People v Bay , 41 NY3d at 208, 214 [brackets omitted], quoting CPL 30.30 [5]). By the addition of subdivision (5), the Legislature \"tethered the People's CPL article 245 discovery obligations to CPL 30.30's speedy trial requirements\" and \"condition[ed] trial readiness . . . on the filing of a proper COC\" ( People v Bay , 41 NY3d at 209, 214). In Bay , the Court explained that the disclosure mandate of CPL article 245 does not create a \"rule of strict liability\" or require a \"perfect prosecutor\" ( People v Bay , 41 NY3d at 207, 212 [internal quotation marks omitted]). \"On the other hand, the plain terms of the statute make clear that while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence\" (41 NY3d at 212 [citations omitted]). Rather, \"the key question in determining if a proper COC has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery\" (41 NY3d at 211 [internal quotation marks, brackets and citation omitted]). The People bear the burden in this regard and the standard is one of \"reasonableness,\" i.e., [*2] whether, under the circumstances presented, the People made reasonable efforts to comply with the statute before filing the initial COC (41 NY3d at 211-212). \"Although the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery\" (— NY3d at —, 2023 NY Slip Op 06407, *2). These amendments \"became applicable to pending actions as soon as [they] became effective\" ( People v King , 216 AD3d 1400 , 1403 [4th Dept 2023] [internal quotation marks, brackets and citation omitted]; see People v Robbins , 206 AD3d 1069 , 1072 [3d Dept 2022], lv denied 39 NY3d 942 [2022]), but did \"not invalidate the People's previous statements of readiness—i.e., those previous statements, so long as not illusory, remain[ed] effective to stop the speedy trial calculation during the pre-amendment period\" ( People v King , 216 AD3d at 1406 [internal quotation marks and citation omitted]; see People v Robbins , 206 AD3d at 1072). Stated differently, the speedy trial analysis includes both the pre-amendment and post-amendment phase, with the People reverting back to a state of unreadiness as of January 1, 2020, if they did not previously file a valid COC. While the disclosure obligations of CPL article 245 are now automatic and obviate the need to file a demand ( see People ex rel. Ferro v Brann , 197 AD3d 787 , 787 [2d Dept 2021], lv denied 38 NY3d 909 [2022]), defendant nevertheless did so on January 6, 2020, requesting, among other things: (1) the \"names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto\" (CPL 245.20 [1] [c]); (2) \"[e]xpert opinion evidence, including the name, business address, current curriculum vitae [hereinafter CV], a list of publications, and a list of proficiency tests and results administered or taken within the past [10] years of each expert witness whom the prosecutor intends to call as a witness\" (CPL 245.20 [1] [f]); and (3) records of convictions of any prosecution witness ( see CPL 245.20 [1] [p]). The record demonstrates that the People provided extensive discovery to the defense following the initial March 2019 indictment. At a court appearance on January 21, 2020, defendant acknowledged receiving \"discovery on the first grand jury that came through\" but advised that discovery remained outstanding relative to the January 6, 2020 demand and defendant was unable to consider a pending plea offer. The prosecutor in attendance, who was filling in for the Senior Assistant District Attorney assigned to [*3] the matter, explained that he did not \"have any notes indicating one way or the other . . . what happened with [the CPL article] 245 material.\" Upon defendant's consent, the matter was adjourned. At the February 11, 2020 appearance, defense counsel advised County Court that she had \"received quite a bit of discovery from the People,\" but certain materials remained outstanding, including the December 2019 grand jury minutes. Nevertheless, defense counsel relayed that defendant was rejecting the plea offer and consented to a motion schedule. On February 28, 2020, the People filed a COC certifying compliance with their statutory disclosure obligations and declaring their readiness for trial. A disclosure statement submitted therewith explained, as relevant here, that the statement made by defendant, as well as the names and contact information of all non-law enforcement personnel with information relevant to the case, had previously been disclosed in the police reports and other materials. The disclosure statement also listed the name of an expert medical witness the People intended to call at trial—certifying that they had provided defense counsel with a copy of the expert's grand jury testimony as well as the medical records pertaining to the victims—stated that tapes of a 911 call and all photographs had previously been provided and maintained that there was \"no current record of convictions for any of the non-expert witnesses indicated above.\" At the next court appearance on March 6, 2020, defense counsel argued that the COC was illusory because the People had not complied with their full discovery obligations. Declining counsel's offer to go through the \"specifics\" of what was missing, County Court adjourned the matter for 10 days to see if the parties could resolve the issue. On March 12, 2020, the People filed an amended/supplemental COC again certifying that they had complied with their discovery obligations and declaring their readiness. As relevant here, the accompanying disclosure statement stated that the December 3, 2019 grand jury minutes were provided to the defense on March 3, 2020, that all statements, \"including all police reports, notes of police and other investigators, and law enforcement agency reports\" had previously been provided \"by hard copy on or about April 19, 2019,\" that all photographs had also been provided in April 2019 and again on February 28, 2020, as had a copy of the search warrant and search warrant return, that the People were awaiting the CV of the expert they had previously disclosed, which would be provided upon receipt, and revealed that they were not in possession of the criminal histories of any of the witnesses \"but [would] provide them to defendant at a later date, should such records exist.\" The next day, defense counsel sent an email to the prosecutor reminding him that the contact information for the adult victim was still outstanding, as were additional expert disclosures and the criminal history [*4] reports for the adult victim and two other witnesses. The prosecutor promptly responded: \"[l]et's talk more about [the adult victim's] contact information. I will explain more when we talk. As for the RAP sheets, I will definitely get all of that to you very soon but do not have it yet. I . . . will run a RAP sheet on all of them.\" The email also stated that the prosecutor was \"waiting on\" the expert's CV. On March 16, 2020, defendant filed an omnibus motion objecting to the February 2020 COC [FN2] and seeking various relief, including suppression of certain evidence and a review of the grand jury minutes. At a court appearance that day, the prosecutor represented that all discovery had been disclosed \"with the exception of a few items,\" including the expert's CV and the criminal history reports of any non-expert witnesses. When defense counsel reminded the prosecutor that the adult victim's contact information was also outstanding, the prosecutor explained the circumstances surrounding the delay, noting that he and defense counsel had initially discussed a proposal under which the contact information would be disclosed to counsel upon an agreement not to share it with defendant. However, after that conversation, the prosecutor \"actually had contact with the victim,\" who \"expressed a great deal of fear and concern.\" Upon hearing this explanation, County Court informed the prosecutor that he would need to file a motion for a protective order to withhold such information ( see CPL 245.70) and should do so in his papers responding to defendant's omnibus motion. The People acknowledge that no such application was forthcoming. Both parties take the position that a March 20, 2020 Executive Order issued by then-Governor Andrew M. Cuomo in response to the COVID-19 pandemic effectively suspended the speedy trial time limitations set forth in CPL 30.30 ( see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]). For purposes of this prosecution, the toll was lifted on October 4, 2020 ( see Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]). While the toll was still in effect, defense counsel continued to contact the prosecutor to obtain outstanding discovery, sending an email on June 4, 2020, listing the materials that had not been disclosed—including the adult victim's contact information, the expert's CV, and the criminal history reports of the prosecution's witnesses—and emphasizing that the matter had been pending for over 15 months. On June 17, 2020, defense counsel moved to strike the COCs, arguing that they were illusory. In an attorney affirmation submitted with the motion, defense counsel again listed the discovery that remained outstanding and cited the provisions of CPL article 245 requiring their disclosure. In opposition, the People argued that they had made good faith/reasonable efforts to comply with their discovery obligations without elaboration. They further averred that they had \"turned over to defense counsel all discoverable items [*5] within [their] possession at the time of the filing of the initial [COC]\" and continued to do so as additional discovery became available. Nevertheless, they conceded that the \"criminal histories of certain potential civilian witnesses ha[d] not been turned over to . . . defendant,\" maintaining that this was an oversight, they had \"ordered the production\" of such information for two of their witnesses, and promising that such information would be \"turned over today.\" As for a third witness, the prosecutor explained that he did not yet have the criminal history record of this witness but would provide it as soon as he did. In November 2020, while a decision on defendant's motion to strike was pending, a new prosecutor was assigned to the case and produced a trove of discovery, including the adult victim's phone number. [FN3] On February 15, 2021, defense counsel sent an email to the new prosecutor noting that, notwithstanding the November 2020 disclosure, certain materials remained outstanding, including, among other things, the expert's CV, criminal history reports of the adult victim and another witness, and any lab reports for \"either the blood, DNA, or the knife\" found at the crime scene. The new prosecutor responded three days later, explaining, as relevant here, that \"we've reached out to [United Healthcare System] Wilson to try to contact [the expert to obtain his CV]. I will send it over as soon as I receive it, but it's my understanding that [CPL article 245] allows this information to be provided up until 60 days before trial.\" As for the criminal history record pertaining to the adult victim, the prosecutor stated that he was \"not sure if this was or wasn't provided previously\" but he had \"prepared a .pdf document which provides this info. She had no history when I checked it.\" This email did not set forth any information regarding the criminal history records of the additional witness defense counsel had inquired about. As for the lab reports, the prosecutor explained: \"with [CPL article] 245's onset the manner through which we check for lab reports has changed to an automated system . . . . I have checked this system and it returned 'no results.' I think I am checking properly but I will call to follow up to confirm this 'no results' [finding].\" Thereafter, on February 22, 2021, the People filed another COC, with a statement of readiness, certifying that they had complied with their discovery obligations. On February 26, 2021, County Court denied defendant's June 2020 motion to strike the February 2020 COC, [FN4] explaining that CPL article 245 \"does not require the disclosure of ALL materials before a proper [COC] and statement of trial readiness can be filed, nor does it require the striking of a [COC] if ALL discoverable material has not been disclosed.\" The court ultimately concluded that the People made \"reasonable and appropriate efforts to comply with their [d]iscovery obligations\" and had filed the February 2020 COC in good faith. On [*6] March 25, 2021, defendant moved to dismiss the indictment pursuant to CPL 30.30, arguing that the 2020 COCs were illusory because discovery was outstanding at the time they were filed and the People did not exercise diligent and good faith efforts to comply with their disclosure obligations ( see CPL 245.20 [1], [2]). As such, defendant claimed, the People did not validly state their readiness for trial within the applicable speedy trial time frame ( see CPL 30.30 [5]). In opposition, the People detailed when certain items of discovery had been turned over and what efforts they had taken to obtain certain materials. They also argued that dismissal would be \"far too extreme\" a remedy for the belated disclosures, emphasizing that \"the defense has not shown any proof to support a claim of prejudice\" in this regard. [FN5] County Court denied defendant's motion, finding that, at most, 147 days of chargeable time accrued between the commencement of the action and the filing of the first COC on February 28, 2020, bringing the People within the six-month speedy trial window applicable in this case. Although the court recognized that the February 2020 COC was filed with certain discovery outstanding, it noted that the exchange of discovery is an ongoing process and found that the People filed the certificate in good faith upon reasonable efforts to comply with their discovery obligations. The court further concluded that invalidating the February 2020 COC would be too drastic a sanction for any violation of CPL article 245. The case ultimately proceeded to a jury trial, after which defendant was convicted of two counts of the lesser included offense of assault in the second degree. He was sentenced to concurrent prison terms of seven years, with three years of postrelease supervision. Defendant appeals. Defendant argues that County Court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds. Defendant having been charged with a felony, the People had six months from March 28, 2019—the date the felony complaint was filed—to declare their readiness for trial, amounting to 184 days ( see CPL 30.30 [1] [a]; CPL 1.20 [16], [17]; People v O'Day , 220 AD3d 986 , 987 [3d Dept 2023]). \"Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion\" ( People v Cortes , 80 NY2d 201, 208 [1992]; see People v McCarty , 221 AD3d 1360 , 1361 [3d Dept 2023]). As for the period before January 1, 2020, the People concede, and we agree, that 89 days of chargeable time accrued between the filing of the felony complaint on March 28, 2019, and the filing of the second indictment, with the accompanying [*7] statement of readiness, on December 3, 2019 ( see People v King , 216 AD3d at 1406; People v Robbins , 206 AD3d at 1072). With the enactment of CPL article 245 and CPL 30.30 (5), however, the People reverted back to a state of unreadiness and could not be deemed ready to proceed to trial unless they filed a proper COC ( see People v Jordan 220 AD3d 1187 , 1188 [4th Dept 2023]; People v King , 216 AD3d at 1406-1407; People v Robbins , 206 AD3d at 1072). This dispute necessarily turns on whether the COCs filed in February and March 2020 were valid so as to render the statements of readiness contained therein operative. If so, then the speedy trial clock stopped before 184 days of chargeable time accrued. [FN6] If neither was valid, then no effective statement of readiness was made until at least February 22, 2021, with the filing of the third COC ( see CPL 30.30 [5]). By that point, however, the speedy trial clock had long expired. While recognizing that the People belatedly provided certain discovery, County Court concluded that the People satisfied the good faith/due diligence statutory standard in filing the February 28, 2020 COC. We agree with that assessment. \"Although belated disclosure will not necessarily establish a lack of due diligence or render an initial COC improper, post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed\" ( People v Bay , 41 NY3d at 212; see CPL 245.50 [1-a]). Considering the illustrative due diligence factors specified in Bay , this record confirms that the People provided extensive, pertinent documentation to the defense as early as April 2019. Significantly, in challenging the February 28, 2020 COC, defendant focused on only three items: the adult victim's contact information, the identified expert's CV and a criminal history for the prosecution witness—all of which was eventually provided, albeit after an unwarranted delay. [FN7] Unlike the prosecutor in Bay who erroneously advised the court that significant records in the People's actual possession did not exist, the People here expressly acknowledged in the February and March 2020 COCs their obligation to provide the expert CV and criminal background information once they obtained the documentation. [FN8] Moreover, the record also reveals a genuine safety concern at that time in disclosing the adult victim's contact information. That the People subsequently failed to follow through in requesting a protective order under CPL 245.70 as the court advised does not vitiate the reasonableness of that concern at the time they filed the initial COC. From our perspective, the ensuing delay in providing the belated discovery items falls within the scope of CPL 245.80 for which an appropriate sanction could have been imposed. Having concluded that the People acted in good faith and exercised due diligence prior to filing the February and March 2020 COCs, we agree with County Court's determination denying defendant's [*8] CPL 30.30 motion. Finally, we reject defendant's contention that the sentence imposed is unduly harsh and severe ( see CPL 470.15 [6] [b]). Accordingly, his request for a discretionary reduction of the sentence is denied. Pritzker, Reynolds Fitzgerald, McShan and Powers, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: Where a defendant is in custody during the pendency of the criminal case, \"the prosecution shall perform its initial discovery obligations within [20] calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, simplified information, misdemeanor complaint or felony complaint\" (CPL 245.10 [1] [a] [i]). Footnote 2: Defendant maintains that he had not been served with the March 2020 COC as of this date. Footnote 3: Defense counsel made this representation as to the victim's phone number in her affirmation accompanying her CPL 30.30 motion and the People do not dispute it. The disclosure in November 2020 consisted of approximately 500 items of discovery, though it is unclear whether any new materials were included in this document production or, if so, whether the new materials were even in existence and in the People's possession prior to filing the COCs. Accordingly, we cannot agree with defendant's assertion that \"the hundreds of . . . items\" turned over in November 2020 is \"proof positive of the People's failure to file the[ ] February 28, 2020 [COC] in good faith.\" Footnote 4: County Court inadvertently overlooked defendant's motion to strike, resulting in the approximate eight-month delay in rendering a decision. Footnote 5: Contrary to the People's contention, Bay makes clear that \"a defendant need not demonstrate prejudice to obtain [a] speedy trial dismissal based on a failure to timely comply with discovery obligations\" ( People v Bay , 41 NY3d at 213). Footnote 6: The People argue that County Court should not have charged them with the entire 58-day period between January 1, 2020, and February 28, 2020. We need not resolve that dispute, for even excluding that entire period would not change the analysis. Footnote 7: Defendant maintains that the People also failed to disclose copies of records pertaining to a Child Protective Services investigation. However, defendant failed to raise that point in challenging the initial COC notwithstanding that these records were referenced in the police reports provided in 2019. In any event, the People obtained these records on February 19, 2021, and promptly disclosed them to defense counsel upon receipt. Although the People should have tried to obtain these records more expeditiously after defense counsel's request in June 2020 ( see People v McCarty , 221 AD3d at 1362 n 2), under the circumstances of this case and taking into account the extensive disclosures prior to February 2020, we cannot conclude that the failure to do so demonstrates a general lack of good faith or due diligence prior to filing the initial COC. Footnote 8: After being informed by the prosecutor at the March 16, 2020 appearance that the expert's CV and the criminal history records of the People's witnesses remained outstanding, County Court should have inquired further to \"ensure that . . . a record w[as] made of the People's efforts to secure\" these materials ( People v Bay , 41 NY3d at 213). Nevertheless, we conclude that the failure to make a more specific record at that time does not vitiate the validity of the prior COCs under the circumstances presented. "
},
{
"from": "gpt",
"value": "App. Div. found that the People's failure to provide timely\ncontact information for a victim before filing COC was rooted in \"a\ngenuine safety concern.\n\" Although the People did not follow through on\nrequesting a CPL 245.70 protective order, as the trial court advised,\n\"does not vitiate the reasonableness of that concern at the time they filed the\ninitial COC.\n\""
}
]
|
2024.03935 | [
{
"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 Bell 2024 NY Slip Op 03935 [229 AD3d 1178] July 26, 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 Aron Bell, Appellant. Reeve Brown PLLC, Rochester (Guy A. Talia of counsel), for defendant-appellant. Aron Bell, defendant-appellant pro se. Christine K. Callanan, District Attorney, Lyons (R. Michael Tantillo of counsel), for respondent. Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered July 9, 2015. The judgment convicted defendant upon a jury verdict of attempted murder in the second degree (two counts), assault in the second degree (two counts), burglary in the first degree (two counts), criminal possession of a weapon in the second degree, criminal mischief in the fourth degree, criminal trespass in the second degree, criminal contempt in the second degree and endangering the welfare of a child (four counts). It is hereby ordered that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts each of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the second degree (§ 120.05 [2]), and burglary in the first degree (§ 140.30 [1], [2]), one count of criminal possession of a weapon in the second degree (§ 265.03 [3]), and four counts of endangering the welfare of a child (§ 260.10 [1]). Defendant contends in his main brief that count 1 of the indictment, charging attempted murder in the second degree, and count 3, charging assault in the second degree, were rendered duplicitous by the trial testimony that purportedly established two distinct shootings at the relevant victim. We reject that contention. With respect to each count, we conclude that defendant \" 'in an uninterrupted course of conduct directed at a single victim, violate[d] a single provision of the Penal Law' \" and therefore \" 'commit[ted] but a single crime' \" ( People v Flanders , 25 NY3d 997 , 1000 [2015]). Contrary to defendant's contentions in his main and pro se supplemental briefs, his conviction of both counts of attempted murder in the second degree is supported by legally sufficient evidence ( see People v Pearson , 192 AD3d 1555 , 1555 [4th Dept 2021], lv denied 37 NY3d 994 [2021]). Additionally, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we reject defendant's contention in the main brief that the verdict with respect to the challenged counts is against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Defendant contends in the main brief that his conviction of criminal possession of a weapon is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]). Defendant failed to raise a constitutional challenge before County Court, however, and therefore any such contention is unpreserved for our review ( see People v Jacque-Crews , 213 AD3d 1335 , 1335-1336 [4th Dept 2023], lv denied 39 NY3d 1111 [2023]; see generally People v Davidson , 98 NY2d 738, 739-740 [2002]; People v Reinard , 134 AD3d 1407 , 1409 [4th Dept [*2] 2015], lv denied 27 NY3d 1074 [2016], cert denied 580 US 969 [2016]). As defendant correctly concedes, his \"challenge to the constitutionality of [the] statute must be preserved\" ( People v Baumann & Sons Buses, Inc ., 6 NY3d 404 , 408 [2006], rearg denied 7 NY3d 742 [2006]; see People v Cabrera , 41 NY3d 35 , 42-51 [2023]). We decline to exercise our power to review defendant's constitutional challenge as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]). Contrary to defendant's contention in the main brief, the court did not err in denying defendant's request for an adjournment following the People's disclosure of additional physical evidence. \"The decision whether to grant an adjournment lies in the sound discretion of the trial court . . . and the court's exercise of that discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice\" ( People v Tripp , 177 AD3d 1409 , 1411 [4th Dept 2019], lv denied 34 NY3d 1133 [2020] [internal quotation marks omitted]). Defendant has made no showing of prejudice, especially given that defendant acknowledges that the People did not use the relevant physical evidence at trial. In light of defendant's resentencing, we do not consider his challenge to the severity of the original sentence, and we dismiss the appeal from the judgment to that extent ( see People v Richardson , 128 AD3d 1377 , 1379 [4th Dept 2015], lv denied 25 NY3d 1206 [2015]). To the extent that defendant challenges the resentence, that challenge is not properly before us because defendant did not take an appeal from the resentence ( see People v Kuras , 49 AD3d 1196 , 1197 [4th Dept 2008], lv denied 10 NY3d 866 [2008]). We have reviewed defendant's remaining contentions in his main and pro se supplemental briefs and conclude that none warrants modification or reversal of the judgment. Present—Smith, J.P., Curran, Bannister, Greenwood and Keane, JJ."
},
{
"from": "gpt",
"value": "Court did\nnot err in denying defendant's request for an adjournment following the\nPeople's belated disclosure of additional physical evidence.\n\"The decision\nwhether to grant an adjournment lies in the sound discretion of the trial\ncourt . . . and the court's exercise of that discretion in denying a request for\nan adjournment will not be overturned absent a showing of prejudice.\n\"\nDefendant made no showing of prejudice; in fact, the People did not seek\nto use at trial the physical evidence at issue."
}
]
|
2024.06498 | [
{
"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 Ortega 2024 NY Slip Op 06498 [233 AD3d 1526] December 20, 2024 Appellate Division, Fourth 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 Wilberto Melendez Ortega, Appellant. Julie Cianca, Public Defender, Rochester (James A. Hobbs of counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Aeron Schwallie of counsel), for respondent. Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair, J.), rendered September 22, 2020. The judgment convicted defendant upon a jury verdict of robbery in the first degree and robbery in the second degree. It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [3]) and robbery in the second degree (§ 160.10 [1]). Defendant's conviction arises from a robbery of a convenience store by defendant and a codefendant who forcibly stole money from the convenience store clerk while using or threatening the immediate use of knives. Defendant contends that Supreme Court erred in denying that part of his omnibus motion seeking to suppress identification testimony from the convenience store clerk. Defendant contends that the showup was unnecessary because the police had enough confirmation that defendant was one of the two perpetrators and thus there was no urgency or exigent circumstances to justify the showup identification. Defendant further contends that the requirements of temporal and spatial proximity were not met inasmuch as the showup took place an hour after the crime at a location approximately two miles from the scene of the crime. \"Showup identifications are disfavored, since they are suggestive by their very nature\" ( People v Ortiz , 90 NY2d 533, 537 [1997]; see People v Johnson , 81 NY2d 828, 831 [1993]). Although such procedures \"are not presumptively infirm\" ( People v Duuvon , 77 NY2d 541, 543 [1991]), the court must determine whether the showup was \" 'reasonable under the circumstances—i.e., justified by exigency or temporal and spatial proximity [to the crime]—and, if so, whether the showup as conducted was unduly suggestive' \" ( People v Cedeno , 27 NY3d 110 , 123 [2016], cert denied 580 US 873 [2016]; see People v Gilford , 16 NY3d 864 , 868 [2011]; People v Knox , 170 AD3d 1648 , 1649 [4th Dept 2019]). Defendant's contention that the showup procedure was not done in temporal and spatial proximity to the crime is preserved for our review inasmuch as the court expressly decided that question in its decision ( see People v Johnson , 192 AD3d 1612 , 1613 [4th Dept 2021]). Defendant's contention, however, that the showup identification was unnecessary and not supported by exigent circumstances is not preserved for our review ( see People v Cruz , 236 AD2d 269, 270 [1st Dept 1997], lv denied 89 NY2d 1091 [1997]; see generally Johnson , 192 AD3d at 1613; People v Walker , 155 AD3d 1685 , 1686 [4th Dept 2017], lv denied 30 NY3d 1109 [2018]). In any event, contrary to defendant's contention, \"a showup is not improper merely because the police already have probable cause to detain a suspect\" ( People v Howard , 22 NY3d 388 , 403 [2013]). In addition, the court properly determined that the showup procedure was reasonable under the circumstances inasmuch as it was conducted in geographic and [*2] temporal proximity to the crime ( see People v Smith , 185 AD3d 1203 , 1207 [3d Dept 2020]; People v Harris , 57 AD3d 1427 , 1428 [4th Dept 2008], lv denied 12 NY3d 817 [2009]; People v Ramos , 34 AD3d 1363 , 1363 [4th Dept 2006], lv denied 8 NY3d 884 [2007]), and thus it was permissible even in the absence of exigent circumstances ( see People v Ball , 57 AD3d 1444 , 1445 [4th Dept 2008], lv denied 12 NY3d 755 [2009]; People v Hampton , 50 AD3d 1605 , 1606 [4th Dept 2008], lv denied 10 NY3d 959 [2008]). Moreover, even assuming, arguendo, that the showup identification should have been suppressed, we conclude that any error in admitting the clerk's in-court identification of defendant is harmless beyond a reasonable doubt ( see People v Waggoner , 218 AD3d 1221 , 1223-1224 [4th Dept 2023], lv denied 40 NY3d 1082 [2023], denied reconsideration 41 NY3d 967 [2024]; People v Bynum , 125 AD3d 1278 , 1278 [4th Dept 2015], lv denied 26 NY3d 927 [2015]). We reject defendant's further contention that he was denied effective assistance of counsel. Defense counsel's failure to make a closing argument at the suppression hearing does not constitute ineffective assistance inasmuch as any such argument would have had little or no chance of success ( see People v Perkins , 160 AD3d 1455 , 1457 [4th Dept 2018], lv denied 31 NY3d 1151 [2018]; People v Rodriguez , 134 AD3d 512 , 513 [1st Dept 2015], lv denied 27 NY3d 968 [2016]). Similarly, defense counsel's failure to request a probable cause hearing does not constitute ineffective assistance. Although defendant would have likely received such a hearing if it was requested because the codefendant had received a probable cause hearing, suppression of the evidence based on an alleged lack of probable cause also would have had little or no chance of success ( see People v Burgess , 159 AD3d 1384 , 1385 [4th Dept 2018], lv denied 31 NY3d 1115 [2018]; see also People v Crouch , 70 AD3d 1369 , 1370 [4th Dept 2010], lv denied 15 NY3d 773 [2010]). Defendant has failed to demonstrate the absence of strategic or other legitimate explanations for defense counsel's brief questioning of prospective jurors during voir dire and his failure to challenge one prospective juror for cause ( see People v Weeks , 221 AD3d 1469 , 1470-1471 [4th Dept 2023], lv denied 41 NY3d 944 [2024]; see generally People v Thompson , 21 NY3d 555 , 559-560 [2013]; People v Benevento , 91 NY2d 708, 712 [1998]). In addition, \"the record does not reflect that counsel's decision to allow a previously rejected prospective juror to serve as an alternate fell below the standard for effective assistance\" ( People v Molano , 70 AD3d 1172 , 1176 [3d Dept 2010], lv denied 15 NY3d 776 [2010]). Defendant also failed to demonstrate the absence of a legitimate or strategic reason for defense counsel's failure to request a charge on the defense of intoxication, especially in light of defendant's testimony that he did not commit the crimes charged ( see People v Lancaster , 143 AD3d 1046 , 1051-1052 [3d Dept 2016], lv denied 28 NY3d 1147 [2017], denied reconsideration 29 NY3d 999 [2017]; see generally People v Bailey , 195 AD3d 1486 , 1488 [4th Dept 2021], lv denied 37 NY3d 990 [2021]). We have examined defendant's remaining allegations of ineffective assistance of counsel and conclude that they lack merit. Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of representation, we conclude that defense counsel provided meaningful representation ( see generally People v Baldi , 54 NY2d 137, 147 [1981]). Defendant failed to preserve for our review his contention that, in sentencing him, the court penalized him for exercising his right to a trial ( see People v Hurley , 75 NY2d 887, 888 [1990]; People v Britton , 213 AD3d 1326 , 1328 [4th Dept 2023], lv denied 39 NY3d 1140 [2023]). In any event, his contention is without merit ( see People v Garner , 136 AD3d 1374 , 1374-1375 [4th Dept 2016], lv denied 27 NY3d 997 [2016]). The sentence is not unduly harsh or severe. Present—Whalen, P.J., Curran, Greenwood, Nowak and Keane, JJ."
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"value": "\"[A]\nshowup is not improper merely because the police already have probable\ncause to detain a suspect\"\n. In addition, the court properly determined that\nthe showup procedure was reasonable under the circumstances inasmuch\nas it was conducted in geographic and temporal proximity to the crime,\nand thus it was permissible even in the absence of exigent circumstances."
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2024.03320 | [
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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 Wright 2024 NY Slip Op 03320 [42 NY3d 708] June 18, 2024 Cannataro, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 19, 2025 [*1] The People of the State of New York, Respondent, v Freddie T. Wright, Appellant. Argued April 18, 2024; decided June 18, 2024 People v Wright , 203 AD3d 965 , affirmed. {**42 NY3d at 711} OPINION OF THE COURT Cannataro, J. Defendant appeals from an order of the Appellate Division upholding the denial of his Batson challenge to the People's exercise of peremptory strikes on two prospective jurors ( see Batson v Kentucky , 476 US 79 [1986]), and denying his motion to suppress the identification testimony of two witnesses. Applying our well settled and limited standard of review, there is record support for the determinations below that the People had valid, race-neutral reasons for striking the two prospective jurors. There is likewise record support for the conclusions of the courts below that the showup procedure used by police was not unduly suggestive. We therefore affirm. I. On the morning of March 26, 2017, two men robbed a restaurant located on Atlantic Avenue in Queens. Upon entering the restaurant, one of the robbers, a Black man wearing a red \"hoodie,\" black jacket, and a bandana over his face, approached Assistant Manager Sumintra Ramsahoye, took something wrapped in a plastic bag out of his pocket, pressed it to her neck, and told her to open the safe in the restaurant's office. Ramsahoye responded that she could not open the safe and, on the robber's demand, instead opened the drive-through cash register drawers and handed over their contents. While these events were taking place, the other perpetrator was {**42 NY3d at 712} standing next to another employee, Jordan Guzman. After the robbers ran out of the restaurant, Guzman called the police. Police Officer Bryce Blake and his partner were on duty in a marked patrol car about a block away when they received a radio call of a robbery in progress. The officers arrived at the restaurant within two or three minutes and Officer Blake observed defendant standing in the parking lot dressed in a black jacket and red hoodie. Upon seeing [*2] the patrol car, defendant fled. Officer Blake pursued defendant on foot for several minutes, eventually observing defendant enter a home through its back entrance. The homeowner advised Blake that the individual who entered the house was in the living room. The officers entered the home, found defendant sitting on a couch in the living room, and placed him under arrest. Simultaneously, other officers were driving Guzman around the neighborhood to see if he could identify the robbers. The canvassing yielded no positive results, but twice, Guzman indicated that individuals stopped by the police were not the perpetrator. Several minutes into the ride, Guzman overheard a radio call indicating that police had apprehended someone and heard one of the officers in the car say, \"I think it is the guy.\" Police then brought Guzman to the house where he identified defendant from his red hoodie and from the way his eyes and forehead looked above the bandana. Police also brought Ramsahoye to the house to make an identification. Upon arriving Ramsahoye saw defendant step out of a police vehicle with his hands behind his back and identified him as the man who robbed her based on his clothing, height, and body weight. At the suppression hearing, which took place over a year later, Guzman was able to identify defendant but Ramshoye was not. Defendant moved to suppress the identification testimony, arguing that the identification procedures were unduly suggestive. The court denied the motion, finding that the identifications were not \"overly suggestive and improper\" because they were made in a \"very short spatial and temporal time between the incident and arrest.\" Additionally, the court found that the radio communication and comment overheard by Guzman while riding with police were not so suggestive as to warrant suppression of his identification. During jury selection, defendant raised a Batson challenge, as relevant here, to the People's use of peremptory strikes on two prospective jurors—C.C. and K.C. C.C., who was a member {**42 NY3d at 713} of the first voir dire panel, was an unmarried Black man with no children who rented his home. When the court inquired of the panel if they knew anyone who had been the victim of a crime, C.C. responded by relating an event 15 years prior in which his cousin was arrested by police for marijuana possession at a family gathering. C.C. recounted that police \"came to the house. They just arrested [my cousin] and took him out and took the other cousins. I had two or three cousins in the house at the time. So they took all three of them and actually, my aunt, which is their mother, with them to the precinct. So they just raided the house and took them all out.\" Notably, when asked whether \"they were all arrested in that incident,\" C.C. answered, \"Yeah.\" C.C. gave assurances that he could be fair notwithstanding this incident but, later, when the People inquired whether he harbored any negative feelings about the police as a result of this incident, C.C. responded, \"Well, yeah, the way—just the fact that they took everybody. I didn't know that they had to take everybody. But that was it.\" Defendant challenged the People's strike of C.C. on the ground that it was an attempt to improperly exclude Black jurors. The court found that defendant had made a prima facie showing that the People sought to exclude C.C. on the basis of race and asked them to provide a nondiscriminatory reason for the use of the strike. The People responded that C.C. \"had cousins who had been arrested . . . had other friends that had been involved in multiple arrests . . . that he rents, and he has no children . . . [and] is not married.\" Defendant countered that \"there were jurors that are on this panel that are not African American who meet every one of those criteria that was just annunciated.\" Supreme Court found that the reasons proffered by the People for their strike of C.C. were not pretextual. K.C., a Black woman, was another prospective juror who was interviewed during the third round of jury selection. K.C. answered affirmatively when the court asked if any of the jurors worked in law enforcement and explained that she worked for the Department of Probation in Family Court. Specifically, K.C. stated that her job entailed interviewing juveniles who had been charged with a crime to determine if they should receive \"intake diversion, which is, like, a short-term probation or if they go to see the judge.\" The People struck K.C. from the panel with a peremptory strike. {**42 NY3d at 714} Defendant challenged the use of this peremptory strike on the ground that the People were improperly excluding K.C. based on race. The court found that defendant made a prima facie showing of discrimination and required the People to give a race-neutral explanation for their strike. In response, the People noted that K.C. \"works for the Department of Probation in the family court which is obviously within the legal field. And on top of it, she works for probation with juveniles\" and that, because of her job, \"sympathy might come into play.\" Defendant countered that K.C. had made clear that \"[s]he wouldn't allow sympathy to interfere in her deliberations\" and that \"[t]here have been other people with law enforcement backgrounds that have not been challenged by the Prosecution.\" Supreme Court found that the reasons proffered by the prosecution were non-pretextual and denied defendant's Batson challenge. [*3] A jury ultimately convicted defendant of second-degree robbery and second-degree criminal trespass. The Appellate Division affirmed, holding that defendant had \"failed to satisfy his burden of demonstrating, under the third prong of the Batson test, that the facially race-neutral explanation given by the prosecutor was a pretext for racial discrimination\" (203 AD3d 965, 966 [2d Dept 2022]). A Judge of this Court granted defendant leave to appeal (38 NY3d 1191 [2022]) and we now affirm. II. The legislature has long afforded parties to a criminal trial a statutory right to exercise a certain number of peremptory strikes, which are \"objection[s] to a prospective juror for which no reason need be assigned\" (CPL 270.25 [1]). Unlike a strike for cause, a party exercising a peremptory strike need not give a specific reason why they believe a juror cannot be impartial ( see People v Allen , 86 NY2d 101, 108-109 [1995]). Nonetheless, equal justice under the law requires that a criminal trial be devoid of racial discrimination in jury selection, and the Batson process endeavors to ensure that such discrimination does not infect the selection process ( see Batson , 476 US at 91). A Batson challenge requires a three-step analysis to determine whether a peremptory strike was used for the purpose of improper discrimination. At step one, the moving party must make a prima facie showing that the opposing party has exercised a peremptory strike to remove a potential juror on {**42 NY3d at 715} the basis of race ( see 476 US at 96). At step two, the burden shifts to the nonmoving party to come forward with a nondiscriminatory reason for each of the challenged strikes ( see People v James , 99 NY2d 264, 270 [2002]). Finally, at step three, once race-neutral reasons for the strike are provided, \"the inference of discrimination is overcome\" and the ultimate burden shifts back to the moving party to \"persuad[e] the court that the reasons are merely a pretext for intentional discrimination\" ( People v Smocum , 99 NY2d 418, 422 [2003]; see People v Hecker , 15 NY3d 625 , 634 [2010]). A trial court's determination at step three of the Batson analysis as to whether use of a peremptory strike is pretextual is accorded \"great deference\" on appeal ( Hecker , 15 NY3d at 656 [internal quotation marks omitted]). \"A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes\" ( Davis v Ayala , 576 US 257, 273-274 [2015]). Even where reasonable minds might differ as to whether a proffered justification is pretextual, the trial court's finding should be affirmed so long as there exists record support for it ( see People v Hernandez , 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]). Only where a trial court's decision as to pretext finds no support in the record may that decision be overturned on the cold record of appeal ( see People v Malloy , 33 NY3d 1078 , 1079 [2019]; Hecker , 15 NY3d at 657). The People's asserted reason for striking C.C. was that \"he had cousins who had been arrested . . . had other friends that had been involved in multiple arrests . . . that he rents, and he has no children . . . [and] is not married.\" Initially, we have characterized \"family involvement with police officers\" as a \"clearly nonpretextual\" reason for exercising a peremptory challenge ( Smocum , 99 NY2d at 420, 423). Moreover, here, the record demonstrates that C.C. felt strongly about the prior incident in which his cousin and family members had been arrested. Indeed, C.C. first mentioned the arrest in response to the court's inquiry as to whether any of the potential jurors knew anyone who had been a victim of a crime, not in response to an inquiry about whether jurors knew anyone who had been arrested. Further, C.C. stated that police \"raided the house\" and \"barged in\" prior to arresting his cousin and detaining other family members, suggesting that he harbored strong feelings about the methods used by law enforcement. Finally, C.C. responded in the affirmative when pressed by the People as to {**42 NY3d at 716} whether this incident caused him to have negative feelings towards police. [1] Any one of these responses would constitute record support for the trial court's pretext determination. Overall, C.C.'s responses gave rise to reasonable inferences that: (1) he viewed the arrest of his cousin for marijuana possession as a crime against his cousin; (2) he viewed the arrest of his cousin as a \"raid\" by police; and (3) his negative feelings towards police could affect his view of police witnesses in the case, regardless of any contradictory assurances he might have given. These inferences are patently reasonable and the trial court's determination that the nondiscriminatory reasons offered by the People in support of their peremptory strike of C.C. were credible and non-pretextual finds ample support in the record ( see Miller-El v Cockrell , 537 US 322, 338-339 [2003]; see also Smocum , 99 NY2d at 420-423). While it is true that unequal application of even facially neutral reasons for a strike can support a finding of pretext, that is but one factor for a court to consider and does not demonstrate discriminatory intent in and of itself, especially where the circumstances surrounding the challenged juror are distinguishable ( see Flowers v Mississippi , 588 US 284, 301-302 [2019]). Here, although there were other prospective jurors whose family members had also [*4] been arrested, the record does not indicate that those jurors shared C.C.'s feelings about the police or felt as strongly as he did about their respective incidents. None of those other jurors made comments indicating that they felt the arrest in question was wrong, or that they had lingering negative feelings about it. Similarly, although the dissent is correct that disparate questioning \" 'can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race' while 'declin[ing] to seek what they do not want to find about white prospective jurors' \" (dissenting op at 733, quoting Flowers , 588 US at 310), this observation lends more towards a condemnation of the Batson process itself than it does the trial court's decision in this case. After all, Batson requires simply that the People provide a credible non-pretextual reason for striking a particular juror; it does not require a justification for why other jurors were not stricken, and the Supreme Court has never endorsed such an analysis. Moreover, the prosecutor here did question other jurors who related negative experiences with police. For instance K.L. revealed during voir dire {**42 NY3d at 717} that he had a \"bad experience[ ]\" with the police approximately 10 years earlier when they detained his mother while verifying that she had a vendor's license for her food truck. The prosecutor questioned K.L. about his lingering negative feelings toward police officers because of this encounter and, ultimately, challenged K.L. for cause. [FN1] Further, the People were not required to credit C.C.'s statement that his feelings regarding his cousin's arrest would not influence his ability to be fair and impartial if his other answers showed an inability to live up to that promise ( see Hernandez , 75 NY2d at 356). The dissent's emphasis on C.C.'s self-proclaimed impartiality seems to ignore the purpose of peremptory challenges, which exist for precisely this kind of situation. Indeed, had C.C. answered the other way—that he would not be able to be fair and impartial—the People would have had a legitimate basis to challenge C.C. for cause ( see CPL 270.20 [1]). On this record, \"we cannot say as a matter of law that the [People's] proffered reason[s] [were] 'pretext for racial discrimination' \" ( Malloy , 33 NY3d at 1079, quoting Hernandez v New York , 500 US 352, 363 [1991]). In so concluding, we do not supply our own non-pretextual reasons to justify the People's peremptory strike. We merely review the record before us—as is our obligation—and find ample support for the trial court's undisturbed factual finding that the People's treatment of C.C., to the extent it differed from that of other jurors who had relatives arrested, was not racially motivated ( see Hecker , 15 NY3d at 656; People v Vandover , 20 NY3d 235 , 239 [2012]). [FN2] Unlike the dissent, we cannot engage in de novo fact-finding. {**42 NY3d at 718} Finally, the only Batson issue before us on this appeal is whether the record supports the trial court's determination at step three that the People's stated justifications for striking C.C. and K.C. were non-pretextual. [FN3] We note, however, that the trial court did articulate the wrong test at step one of defendant's Batson challenge relating to C.C., stating that the defendant had met his burden of showing that the People were excluding jurors solely on the [*5] basis of race. However, the dissent's attempt to arrogate this misstatement into reversible error—on an issue that was neither objected to below nor raised by defendant on appeal—is misplaced. The parties agree that the trial court properly concluded that defendant satisfied step one of the Batson analysis. There is no evidence that the court's misstatement at step one infected the court's step three analysis. The court applied the correct standard at step three in determining that the People's proffered reason was not pretextual, finding no \"basis for discrimination\" in the way the People exercised their strikes and that it \"believed the reasons given for these jurors given peremptory challenges were not pretextual and were the genuine reasons why [the prosecutor] challenged these jurors.\" The court's function at step three is distinct from its role at step one and, the dissent's transference theory notwithstanding, the trial court here did not reject defendant's Batson challenge on the ground that defendant had failed to demonstrate that racial discrimination was the sole basis for the strikes. Given the court applied the correct standard at step three, any mischaracterization of the standard at step one is not determinative. As for prospective juror K.C., the People offered a race-neutral reason for their use of a peremptory strike, specifically that \"she works for [P]robation with juveniles.\" The People expressed concern that K.C.'s job duties would cause her to be inappropriately sympathetic to defendant. K.C.'s job involved determining whether juvenile offenders would be entitled to intake diversion, or face prosecution, and she was previously employed as a caseworker. We have previously recognized that a party may permissibly strike a juror \"who works in a certain field . . . because that party believes—for reasons unrelated to {**42 NY3d at 719} the facts of the case—that such individual may have a more sympathetic attitude or view toward the opposing party\" ( Hecker , 15 NY3d at 664, citing People v Wilson , 43 AD3d 1409 , 1411 [4th Dept 2007] [permissible for the People to challenge a social worker on the basis they may be predisposed to sympathy towards defendants], lv denied 9 NY3d 994 [2007]; see also People v Hardy , 61 AD3d 616 , 616 [1st Dept 2009] [use of a peremptory strike against a juror who was an aspiring social worker], lv denied 13 NY3d 744 [2009]; People v Wint , 237 AD2d 195, 197 [1st Dept 1997] [use of peremptory strikes against psychiatric worker and social worker], lv denied 89 NY2d 1103 [1997]; People v Mancini , 219 AD2d 456, 457-458 [1st Dept 1995] [use of a peremptory strike against a teacher], lv denied 86 NY2d 844 [1995]). Here, we cannot say that there is no record support for the trial court's finding that the reason offered by the People was not pretextual and as such there is no basis for reversal on these grounds ( see Hecker , 15 NY3d at 663-664). [FN4] III. [2] Finally, the courts below did not err in holding that the showup identification procedures used immediately after defendant's arrest were not unduly suggestive. Showups are \"generally suspect and disfavored\" ( People v Duuvon , 77 NY2d 541, 543 [1991]). Nonetheless, \"at-the-crime-scene civilian showup identifications are not presumptively infirm\" ( id. ) and are permissible \"if exigent circumstances require immediate identification, or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately\" ( People v Riley , 70 NY2d 523, 529 [1987] [citation omitted]; see People v Johnson , 81 NY2d 828, 831 [1993]; People v Gilford , 16 NY3d 864 , 868 [2011]). {**42 NY3d at 720} Although this Court has stated that a showup procedure in which a suspect is handcuffed and in the presence of police is \"suggestive and not preferred\" and \"presses judicial tolerance to its limits\" ( People v Duuvon , 77 NY2d 541, 545 [1991]), we have concluded that such a showup is \"reasonable under the circumstances\" when it is conducted in close geographic and temporal proximity to the crime ( People v Brisco , 99 NY2d 596, 597 [2003]). When a showup is done as part of \"one unbroken chain of events—crime, escape, pursuit, apprehension and identifications\"—such a procedure is acceptable ( Duuvon , 77 NY2d at 544-545; see also People v Ortiz , 90 NY2d 533, 537 [1997] [\"Proof that the showup was conducted in close geographic and temporal proximity to the crime will [*6] generally satisfy . . . the People's burden\" of showing that a showup procedure was not unduly suggestive]). As we have recognized, \" 'prompt showup identifications by witnesses following a defendant's arrest at or near the crime scene have been generally allowed' \" ( People v Johnson , 81 NY2d 828, 831 [1993], quoting Duuvon , 77 NY2d at 544; accord People v Howard , 22 NY3d 388 , 402 [2013]). Moreover, \"[w]hether a crime scene showup is unduly suggestive is a mixed question of law and fact. Thus, if record evidence supports the determination below, this Court's review is at an end\" ( Brisco , 99 NY2d at 597; see People v Romero , 27 NY3d 981 , 982 [2016]; Howard , 22 NY3d at 403; Gilford , 16 NY3d at 868; People v Clark , 85 NY2d 886, 889 [1995]). Here, as the trial court found, the showups were conducted within a few blocks of the crime scene and took place immediately after the robbery and defendant's apprehension. That defendant was handcuffed and in the presence of police officers is not unusual for a crime-scene showup justified by exigency, particularly where a weapon may have been used in the crime ( see e.g. Howard , 22 NY3d at 403; Gilford , 16 NY3d at 867). \"[G]iven that the police were looking for armed robbers, they logically would have wanted to move as quickly as possible to find out whether they had apprehended the . . . perpetrator[ ]\" and a \"showup is not improper merely because the police already have probable cause to detain a suspect\" ( Howard , 22 NY3d at 403). That the police may have had cause to arrest defendant for trespass, as the dissent contends, does little to mitigate the concern that, if he was not identified by the victims as one of the robbers, the perpetrators of that crime might have remained at large in the community. Moreover, there are indicia of reasonableness in the procedures used; defendant {**42 NY3d at 721} was not shown handcuffed in the back of a police car ( compare Duuvon , 77 NY2d at 545); he was not shown to the witnesses with any evidence of the stolen property ( compare Riley , 70 NY2d at 530); and the showups were conducted separately—reducing any risk of the witnesses inadvertently influencing each other ( compare People v Adams , 53 NY2d 241, 249 [1981]). To the extent defendant argues that statements overheard by Guzman in the back of the police car were unduly suggestive, certainly, such conduct is not to be encouraged. Nonetheless, it is pertinent that the police had already shown Guzman two other individuals—who they presumably also suspected could have been the robbers and Guzman declined to identify as the perpetrators. In any event, even if \"it is possible to disagree with the lower courts here, it simply cannot be said that no record support exists for their unanimous determination that [these] showup[s] [were] reasonable and not unduly suggestive\" ( Howard , 22 NY3d at 403). \"As a result, the determination of the hearing court in this case, undisturbed by the Appellate Division and supported by evidence in the record, is beyond our further review\" ( Gilford , 16 NY3d at 868). Accordingly, the order of the Appellate Division should be affirmed. Chief Judge Wilson (dissenting). Mr. Wright was convicted, upon a jury trial, of robbing a Taco Bell. He may have done so, but that is not the question before our Court. The question is whether his conviction was obtained consistent with two rules fundamental to the procedural fairness of trials: the police should not use highly suggestive procedures to obtain eyewitness identifications, and prosecutors should not consider the race of prospective jurors when exercising [*7] peremptory strikes. I conclude it was not, and for that reason I would reverse and vacate his conviction so that he can be retried consistent with the requirements of due process. I. I turn first to the suggestiveness of the identification procedure. Ms. Ramsahoye, the supervisor on duty, testified that the person who directed her to hand over the registers was \"wearing a red hoodie, black jacket.\" When asked, \"Could you see any part of his face,\" she answered: \"No. He had something over his nose.\" The other witness, Mr. Guzman, testified that {**42 NY3d at 722} he was asleep when the robbers entered the Taco Bell, was awakened by the noise, and before the man took Ms. Ramsahoye into the office he observed only the man's forehead and eyes, because the rest was covered by the hoodie and a bandana. He identified the man as wearing a red hoodie, with no mention of a jacket, black or otherwise. The record is clear: neither witness saw the face of either robber. Officers Blake and Schuman were in the vicinity of the Taco Bell and responded to a radio call for a robbery in progress, describing the perpetrator as \"a male Black, black jacket,\" with no mention of a red hoodie. When they stopped in front of the Taco Bell, they saw a man wearing a black jacket and red hoodie walking toward a Lincoln Town Car who \"took off running\" when he saw the officers. They saw him enter the back yard of a house, and although they tried to follow him, they lost sight of him twice, first for \"less than ten minute[s],\" and then a second time for less than a minute. Officer Blake then apprehended Mr. Wright in the living room of a house he had no permission to enter, and Officer Blake placed him under arrest. Approximately 5 to 10 minutes later, officers arrived at the scene with Ms. Ramsahoye and Mr. Guzman for the showup identification process. Ms. Ramsahoye testified that officers responding at the Taco Bell \"asked [her] to go and identify someone.\" After arriving at the house, one of the officers told her that they \"would bring someone out\" of another police car. Although she did not recall exactly how many officers were present, Ms. Ramsahoye testified that there were \"quite a few\" and that there were at least four police cars. While sitting in the patrol car, from approximately 30 feet away, Ms. Ramsahoye saw \"police br[ing] the suspect\" out from another officer's car with his hands behind his back. He was wearing a red hoodie but not a jacket. She did not recognize his face but identified the man as the robber due to \"the clothes that he was wearing, the height and his body weight.\" When asked at the suppression hearing what else Wright was wearing, Ms. Ramsahoye testified, \"I don't remember—that's all I remember, just wearing a red hoodie. Of course his jeans or whatnot.\" At the suppression hearing, Mr. Wright was present, and Ms. Ramsahoye was asked if she recognized him. She said that she was not sure who he was. At trial, however, Ms. Ramashoye first testified that when the police brought her to see if she could identify the person they were bringing out of a police car, in handcuffs, she {**42 NY3d at 723} recognized that person as the person who had robbed the store, and twice described him, at the time the police brought him out, as wearing a red hoodie and a black jacket when she identified him. Next, she testified that the man she identified when the police brought him out was the defendant. Then, she testified that Mr. Wright was someone with whom she had worked approximately seven years before the robbery, but had not recognized him as her former coworker as the robbery occurred, when she made an identification shortly thereafter, or during the 45 minutes she observed him during the suppression hearing (at which time she could not even identify him as the man who robbed the store). Turning back to the time just after the robbery, other officers had been driving around the neighborhood with Mr. Guzman in search of the robbers. After \"circling the area\" for 6 to 10 minutes, Mr. Guzman heard the officers receive \"a call and said they stopped a guy and they think it is the guy\" and \"went to the location\" relayed over the radio, the house where Mr. Wright had been apprehended. At the suppression hearing, Mr. Guzman clarified that he overheard the officers receive a call on the police radio, and that one of the officers escorting him stated \"I think it is the guy.\" At trial, Mr. Guzman reaffirmed that while in the police car he heard, over the police radio, someone say that the police had \"stopped someone that might be the person,\" and that one of the officers in the car transporting Mr. Guzman said, \"I think we got the guy.\" When they arrived at the location, Mr. Guzman remembered seeing \"a lot of police officers,\" and he saw \"a guy getting arrested outside of a house, escorted outside of a house\" handcuffed and in police custody. While seated in a patrol car, from about 20 feet away, Mr. Guzman identified the person under arrest as the robber wearing the red hoodie. However, at trial, Mr. Guzman was not asked whether he saw the robber anywhere in the courtroom, or to make an in-court identification of the defendant. Mr. Wright moved to suppress both identifications as unduly suggestive. Supreme Court denied his motion, holding that the identifications were not \"overly suggestive and improper\" because the witnesses were transported one block to identify Mr. Wright 10 to 20 minutes after the robbery, a \"very short spatial and temporal time between [*8] the incident and arrest.\" The Appellate Division affirmed without mentioning the challenge to the identifications by Ms. Ramsahoye and Mr. Guzman as unduly suggestive (203 AD3d 965 [2d Dept 2022]). {**42 NY3d at 724} Noting that a \"confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial,\" the United States Supreme Court, in the Wade-Stovall-Gilbert trio of cases, established an exclusionary rule barring such identifications when made in the absence of counsel ( United States v Wade , 388 US 218, 228 [1967]). Although lineups and photo arrays, even when constructed with the best of intentions, may still create some improper suggestiveness, \"[i]t is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by police\" than \"the presentation to the witness of the suspect alone handcuffed to police officers\" ( id. at 234). \"It is firmly established in our jurisprudence that unduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused\" ( People v Chipp , 75 NY2d 327, 335 [1990]). The use of impermissibly suggestive identification procedures violates a defendant's right to due process of law ( Neil v Biggers , 409 US 188, 196 [1972]). As we have stated, \"erroneously induced identification evidence via showups . . . must be vigilantly guarded against because this kind of error drives right into the heart of the adjudicative guilt or innocence process affecting the person accused and identified\" ( People v Riley , 70 NY2d 523, 531 [1987]). Nevertheless, we have not held that any suggestiveness attendant to a showup requires the suppression of identification evidence where the police have used a showup. Instead, we have \"emphasized . . . that the proof 'must be scrutinized very carefully for [evidence of] unacceptable suggestiveness and unreliability' \" ( People v Ortiz , 90 NY2d 533, 537 [1997], quoting People v Duuvon , 77 NY2d 541, 543 [1991]), and have set out the following procedure to determine whether identification evidence may be admitted despite the use of a showup: \"While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, the burden is on the People first to produce evidence validating the admission of such evidence. Initially, the People must demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal {**42 NY3d at 725} proximity to the crime will generally satisfy this element of the People's burden. This does not end the inquiry, however. The People also have the burden of producing some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive. As we noted in People v Chipp , 'the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure' \" ( id. [citations omitted]). Here, the showups failed both elements of the People's burden, especially with respect to suggestiveness. As to reasonableness under the circumstances, although generally geographic and temporal proximity will establish reasonableness, that is so because in the ordinary case there is an important policy at play that favors a quick determination of whether there is a basis to arrest someone. In this case, however, as Supreme Court itself acknowledged, because Mr. Wright was trespassing in a home whose owner informed the police Mr. Wright had no reason to be there, the police could have (and did) arrest him on that basis, take him to the precinct, and arrange for witnesses to identify Mr. Wright using a far less suggestive procedure, such as a lineup. [FN1] [*9] As to the second element of the People's burden, production of evidence demonstrating that the showup was not unduly suggestive, Supreme Court conflated the two different examinations, responding to Mr. Wright's contention that \"the showups were unnecessary\" because there was \"probable cause without {**42 NY3d at 726} the complainants\" by pointing out the \"very short spatial and temporal time [sic] between the incident and arrest.\" \"We have held that '[s]howup identifications, by their nature [are] suggestive [and] are strongly disfavored' . . . . By contrast corporeal lineups, properly conducted, generally provide a reliable pretrial identification procedure\" ( Chipp , 75 NY2d at 335, quoting Riley , 70 NY2d at 529). Here, the showups were particularly suggestive because neither witness saw the robber's face and because the showups could easily have been replaced with a less suggestive pretrial identification procedure. As a further matter, the evidence at the suppression hearing demonstrated the extreme suggestiveness of the procedures used here. Both witnesses observed Mr. Wright as he was handcuffed, surrounded by \"a lot of police officers\" and at least four police cars. On his way to identify Mr. Wright, Mr. Guzman heard a transmission over the police radio that the police had apprehended someone they believed was the robber, and an officer in the car transporting Mr. Guzman said \"I think we got the guy\"—both when Mr. Guzman and the officers were merely three or four blocks away from the scene. Functionally, the suggestiveness in this scenario is no different than a police precinct showup, which we have held inadmissible absent exigent circumstances or proof of an independent source ( Riley , 70 NY2d at 529-532). As to Ms. Ramsahoye, although she did not hear the police statements that Mr. Guzman did, the remaining circumstances were identical. In addition, her sworn testimony at the suppression hearing—that, after observing Mr. Wright there for 45 minutes, she could not say that he was the robber—is strong evidence that the inherent suggestiveness of the showup resulted in her identification of Mr. Wright as the robber, an identification she admittedly did not make based on his facial appearance, but only on his wearing a red hoodie and his general build, which in itself was not distinctive (five feet, six inches, to five feet, eight inches, 170 to 180 pounds). The combined effect of the suggestive circumstances of this showup procedure pushed \"judicial tolerance\" beyond \"its limits\" ( Duuvon , 77 NY2d at 545). Absolutely no effort was made by the police to provide for reliable identifications ( see Ortiz , 90 NY2d at 537). Particularly because the faces of both of the robbers were covered, we should be loath to sanction use {**42 NY3d at 727} of a highly disfavored identification procedure in a situation where a superior procedure was readily available. II. I also conclude that the People impermissibly employed a peremptory strike to exclude potential juror C.C. because of that panelist's race, in violation of Batson v Kentucky (476 US 79 [1986]) and our related case law. When a party raises a Batson challenge, the trial court engages in a familiar three-step process. In step one, the moving party bears the burden of establishing a prima facie case of purposeful discrimination against a cognizable group in the exercise of peremptory strikes ( id. at 96; People v Smocum , 99 NY2d 418, 421 [2003]). Once the court finds a prima facie case of unlawful discrimination has been established, the inquiry moves on to step two, in which the nonmoving party must provide a race-neutral reason for excluding each panelist challenged ( Batson , 476 US at 94-98; Smocum , 99 NY2d at 422 [\"(a)t this second stage the reasons need be only facially permissible\"]; People v Allen , 86 NY2d 101, 109 [1995]; see also Hernandez v New York , 500 US 352 [1991]). At step three, the burden shifts back to the moving party to \"persuad[e] the court that [the] reasons are merely a pretext for intentional discrimination\" ( People v Hecker , 15 NY3d 625 , 656 [2010]). In step three, the trial court \"make[s] an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented,\" evaluating whether the moving party's proffered reasons are \"merely a pretext for intentional discrimination\" ( Smocum , 99 NY2d at 422). A. The trial court's Batson analysis was infected by an erroneous statement of law. The court repeatedly articulated Mr. Wright's burden at step one as establishing \"a prima facie case that your adversary has excluded jurors solely on account of their [race]\" (emphasis added). That was not a transcription error or errant misspeak: the court repeated its erroneous statement of the law by stating, \"I'm asking you what facts and inferences establish a prima [*10] facie case that the Prosecutor has excluded jurors solely on the account of their [race]\"; and \"your position is that you've established a prima facie case that these jurors were excluded solely because they were African American; is that correct?\" That misstates the law. The standard at {**42 NY3d at 728} step one, two or three is the same in this regard: if race (or any other invidious classification) forms any part of a reason for use of a peremptory strike, Batson requires that the strike be rejected ( People v Luciano , 10 NY3d 499 , 505 [2008] [\"The purpose of the Batson rule is to eliminate discrimination, not minimize it\" (citation and quotation marks omitted)]; Smith v United States , 966 A2d 367, 369 [DC 2009, as amended on reh May 14, 2009] [\"race is an impermissible factor, even if a minor one, in exercising peremptory strikes\"], quoting Tursio v United States , 634 A2d 1205, 1212 n 7 [DC 1993]). However, applying that incorrect standard, the court found that Mr. Wright had made out a prima facie case. That is, at step one, the court found that Mr. Wright had established a prima facie case that certain of the People's peremptory strikes (as to three prospective jurors, C.C., T.C. and A.S.) had been made solely because of the panelists' race. Given that finding, the People's later nonpretextual reasons at most established that the People considered those factors, along with race, as the basis to exclude certain jurors. That, nevertheless, would run afoul of Batson and render the peremptory strikes impermissible. [FN2] Looking at it from another angle, the court's error in concluding that a peremptory strike is unlawful only if race (or another protected classification) is the sole basis for the strike imposed a legally incorrect burden on Mr. Wright at step three, concluding that he failed to prove that the People's reasons were pretextual because he had not demonstrated that racial discrimination was the sole basis for the strikes. That error of law requires automatic reversal and a new trial ( Hecker , 15 NY3d at 661). B. Even setting aside that error, Mr. Wright met his burden to show that the People's peremptory strike of prospective juror {**42 NY3d at 729} C.C. violated Batson . In the first round of voir dire, 16 potential jurors were questioned, two of whom were African American: C.C. and A.S. During questioning, the court asked: \"Has anyone on the jury or any close friend or associate or family member been the victim of a crime or witnessed a crime or in any way participated somehow in a criminal proceeding ? Does anyone know a person who has been the victim of a crime or yourself been the victim of a crime or witness to a crime? Any type of crimes, various crimes. . . . Raise your hand if you've been the victim of a crime. Almost everybody\" (emphasis added). After several potential jurors answered, C.C. answered as follows: \"[C.C.]: Yeah, I had a cousin. This was, like, maybe 15 years ago. He got arrested in his home while I was there because he had some weed on him. And they came to the house. They just arrested him and took him out and took the other cousins. I had two or three cousins in the house at the time. So they took all three of them actually, my aunt, which is their mother, with them to the precinct. So they just raided the house and took them all out. That's the only thing I got. \"THE COURT: That was going to be my next topic or subject matter. Anyway, we'll discuss it. Now would that affect your ability to be fair and impartial in this matter? [*11] \"[C.C.]: No.\" Five additional, non-African American panelists disclosed having family members or close friends who had been arrested; the prosecutor did not challenge or question any of them. Instead, the prosecutor questioned only C.C., at length, about his feelings on his relative's incident: \"[PROSECUTOR]: Okay. How do you feel about how everybody was treated in that situation by the Police Department? \"[C.C.]: Well, I mean, my cousin did the wrong thing and had what he had and bringing it into the house. And that was a bad thing right here. And the fact that they had to come in—one thing I didn't like {**42 NY3d at 730} was when they barged in. I'm not sure if they actually knocked or anything like that, but I know they came in, just grabbed my cousin, found that he had stuff on him, cuffed him and brought everybody out of the house. \"[PROSECUTOR]: So you have a negative feeling about how the police got there and their approach in going inside? \"[C.C.]: Well, yeah, the way—just the fact they took everybody. I didn't know that they had to take everybody. But that was it.\" The prosecutor then asked about C.C.'s present feelings and how they might bear on his ability to be impartial here: \"[PROSECUTOR]: . . . There are police officers that are going to take the stand in this case. Do you have any negative feelings from that incident? . . . [D]o you have any negative feelings from that incident with your family that may make it so that when those police officers testify, you may have a prejudgment of them before they even say anything? \"[C.C.]: Not at all. \"[PROSECUTOR]: Okay. So you'll give the police officers a fair shake. . . . [Y]ou'll give them a fair shake, and you'll listen to what they have to say before making any conclusions about them? \"[C.C.] Yes, I will.\" Both African American panelists were removed during the first round of voir dire: A.S. was excused for cause; C.C. was peremptorily struck by the prosecution. During the second round, the prosecutor exercised a peremptory challenge against T.C., another African American potential juror, and Mr. Wright's counsel raised a Batson objection as to both T.C. and C.C. After the court found that Mr. Wright had made a prima facie case of discrimination, the Batson inquiry progressed: \"[PROSECUTOR]: . . . I exercised a peremptory challenge based on the fact that [C.C.] had cousins who had been arrested. And I have a note that he had other friends who had been involved in multiple arrests. That was one of the main reasons there. {**42 NY3d at 731} Also, that he rents, and he has no children. He is not married. Those were the reasons at the time for [C.C.]. \"[DEFENSE COUNSEL]: Judge, respectfully, there were jurors that are on this panel that are not African American who meet every one of those criteria that was just [e]nunciated. There are people who have been crime victims, people who rent. [*12] \"THE COURT: [C.C.] did explain that number [sic] of people arrested in the house that he was present concerning marijuana. I recall that. In his background. Okay. . . . \"I don't find any basis for discrimination in the way [the prosecutor] used these challenges. She has good reasons for the reasons she used these challenges, and she stated them on the record. . . . I find I believe the reasons given for these jurors given peremptory challenges were not pretextual and were the genuine reasons why [the prosecutor] challenged these jurors.\" i. The People gave three race-neutral reasons for striking C.C.: (1) C.C. had \"cousins who had been arrested\"; (2) C.C. \"had other friends that had been involved in multiple arrests\"; and (3) C.C. was an unmarried renter with no children. The record here demonstrates that those reasons were pretextual. As to the People's first reason, C.C. recounted an incident 15 years earlier in which his cousin who was arrested for possession of marijuana was taken to the police station along with all of the occupants of the house except C.C.'s grandmother. The prosecutor probed C.C. extensively about the incident, asking pointed questions such as how C.C. felt about \"how everybody was treated in that situation by the Police Department\" and whether he had \"a negative feeling about how the police got there and their approach in going inside.\" When asked directly about his present feelings, C.C. unequivocally stated twice that his feelings about his cousin's arrest would not influence his ability to be fair and impartial here. In contrast, at least five non-African American panelists had family members or close friends who had been arrested; none of them was stricken by the People. Some of those arrests were {**42 NY3d at 732} for far more serious crimes, more recent, and of more closely related relatives. The record established that as to those five prospective jurors: • One's younger brother served approximately four years in prison for third-degree robbery committed \"over 15 years ago\" and also had an uncle who had been \"incarcerated for drugs\"; • One had a cousin who served time in prison for tax evasion \"between three and five years\" ago; • One had a family member previously incarcerated for gun charges and another family member who was currently serving time for assault; • One had a cousin who was arrested trying to enter the country without proper legal status \"over 10 years ago\"; and • One had a close friend whose husband who was arrested for dealing drugs \"about two years ago\" as part of a \"drug raid\" in the Bronx. Like C.C., each of those panelists answered that their family members' experiences would not affect their ability to be fair in the case here. However, although C.C.'s relationship to someone on the wrong side of the law was far more attenuated in time and/or severity than the other potential jurors who were not African American, the prosecutor subjected only C.C. to extended questioning about his feelings on his relative's relatively minor incident and peremptorily struck only C.C. In the abstract, \"family involvement with police officers\" may be a nonpretextual reason for use of a peremptory strike, as the majority asserts ( see majority op at 715, quoting Smocum , 99 NY2d at 423). But in the context here, it is simply not credible to assert that the extended questioning of an African American juror whose cousin was arrested for marijuana possession 15 years ago was not pretextual when the prosecutor cared not a whit about jurors whose relatives and close friends were incarcerated for criminal possession of a weapon, assault, drug dealing and robbery—the crime at issue here. The distinguishing feature as to the disparate prosecutorial interest was that C.C. was African American, and the others with more recent and more severe \"family involvement with police officers\" [*13] were not. The majority's rationale means that if the People point to some issue that, in the abstract, might be a nondiscriminatory basis to strike a juror, they may wield it in a discriminatory way, singling out African Americans or members of other {**42 NY3d at 733} protected groups for peremptory strikes while ignoring those factors as to others. The majority's rationale is incompatible with the United States Supreme Court's recognition that disparate questioning \"can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race\" while \"declin[ing] to seek what they do not want to find about white prospective jurors\" ( Flowers v Mississippi , 588 US 284, 310 [2019]). The second reason given by the People for striking C.C.—that he had \"other friends that had been involved in multiple arrests\"—has no support in the record whatsoever. The People now acknowledge that the prosecutor's second reason was \"[c]learly . . . in error.\" It is noteworthy that, among the three reasons given by the prosecutor, the prosecutor singled out this reason as \"one of the main reasons\" for striking C.C. [FN3] The provision of a reason wholly devoid of support in the record suggests that the reason was pretextual ( see People v Coleman , 195 AD3d 1411 , 1413 [4th Dept 2021] [\"a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make\"]). The third reason offered by the prosecutor was that C.C. was an unmarried renter without children. That explanation likewise suggests pretext for two reasons. First, several other non-African American prospective jurors were renters, several were unmarried, and several were childless. Yet the People did not use a peremptory strike on any of those prospective jurors. \"If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination\" ( Miller-El v Dretke , 545 US 231, 241 [2005]). Second, those characteristics are irrelevant to the facts of this case, which was a commercial robbery that did not involve children, renters or spouses. Although not dispositive standing alone, \"[w]hether a proffered reason relates to the {**42 NY3d at 734} facts of a case or a prospective juror's qualifications is certainly a factor relevant to a court's determination of pretext\" ( Hecker , 15 NY3d at 664; see also Miller-El v Cockrell , 537 US 322, 339 [in the Batson context, \"(c)redibility can be measured by, among other factors . . . whether the proffered rationale has some basis in accepted trial strategy\"]; Batson , 476 US at 98 [\"The prosecutor . . . must articulate a neutral explanation related to the particular case to be tried\"]). Recently, the United States Supreme Court rejected justifications very much like those constituting the People's third reason proffered in this case. In Foster v Chatman , in holding that the prosecutors had violated Batson , the Court rejected proffered reasons because white jurors sharing the characteristics used to justify the peremptory strike of an African American juror were not stricken: \"[O]ther explanations given by the prosecution, while not explicitly contradicted by the record, are difficult to credit because the State willingly accepted white jurors with the same traits that supposedly rendered Garrett an unattractive juror. Lanier told the trial court that he struck Garrett because she was divorced. But he declined to strike three out of the four prospective white jurors who were also divorced. Additionally, Lanier claimed that he struck Garrett because she was too young, and the 'State was looking for older jurors that would not easily identify with the defendant.' Yet Garrett was 34, and the State declined to strike eight white prospective jurors under the age of 36. Two of those white jurors served on the jury; one of those two was only 21 years old\" (578 US 488, 505-506 [2016] [citations omitted]). [FN4] Here, because several non-African American jurors were ultimately empaneled even though they were renters, unmarried and/or childless, the claim that those characteristics were the bases to strike C.C. rests on no \"valid line of reasoning\" or intentional trial strategy ( c.f. Hecker , 15 NY3d at 663-665 [record {**42 NY3d at 735} supported trial court's finding that People's proffered reason was genuine when the People asserted that panelists' education and employment level informed their jury selection strategy and nearly all impaneled jurors met the People's education and employment criteria]). Because \"much of the reasoning provided by [the People] has no grounding in fact\" ( Foster , 578 US at 502), Mr. Wright met his burden to show that the People's stated reasons for striking C.C. were pretextual. ii. In Batson cases, our review is \"limited to the examination of Supreme Court's pretext determination in light of the reasons placed on the record by . . . counsel concerning her removal of [a prospective juror]. In doing so, we cannot engage in factfinding, but merely search the record for support for the trial court's ultimate pretext determination\" ( Hecker , 15 NY3d 625, 656-657 [2010] [emphasis added]; see also People v Bridgeforth , 28 NY3d 567 , 571 [2016] [\"(A)t step three, the trial court must determine, based on the arguments presented by the parties , whether the proffered reason for the peremptory strike was pretextual\" (emphasis added)]). It is therefore imperative that the trial court \"establish a meaningful record for a reviewing court to uphold its ruling\" ( Hecker , 15 NY3d at 657; see also People v Payne , 88 NY2d 172, 184 [1996] [\"the trial courts bear the judicial responsibility of ensuring that an adequate record is made and of reflecting the basis for their rulings \" (emphasis added)]; cf. Snyder v Louisiana , 552 US 472, 479 [2008] [appellate court could not presume the trial judge credited the prosecutor's assertion regarding a struck panelist's demeanor when the record did not show that the trial judge actually made a determination concerning his demeanor]). Here, the trial court failed to establish an adequate record of its pretext determination with respect to C.C., stating simply that the prosecutor's three proffered reasons were \"good reasons for . . . us[ing] these challenges . . . [which] she . . . stated on the record,\" elaborating only that C.C.'s cousin had been arrested for marijuana—nothing else. [FN5] For the reasons I discussed earlier, those rationales are not supported by the record. {**42 NY3d at 736} Instead of attempting to defend the reasons given by the prosecutor, as required by Hecker and Bridgeforth , the majority has scoured the record and come up with some reasons the prosecutor could have given, but didn't: \"the record demonstrates that C.C. felt strongly about the prior incident in which his cousin and other family members had been arrested\" and cites three pieces of evidence \"[a]ny one\" of which \"would constitute record support for the trial court's pretext determination\": (1) C.C. first mentioned the arrest in response to the court's inquiry about whether any jurors knew anyone who had been the victim of a crime; (2) C.C. stated that the police \" 'raided the house' and 'barged in' [when] arresting his cousin and detaining other family members\"; and (3) \"C.C. responded in the affirmative when pressed by the People as to whether this incident caused him to have negative feelings towards police\" (majority op at 715-716). The People did not give those as reasons for striking C.C., and the court likewise did not refer to any of them when concluding that the reasons given by the People were not pretextual. When providing their nonpretextual reasons for striking C.C., the People did not mention C.C.'s feelings toward the police, his use of the words \"raid\" or \"barge,\" or the fact that he was upset that others in his family had been taken to the police precinct. Not only has the majority invented reasons never given by the prosecutor or the court, but it has gone far afield of the actual record to do so. For example, contrary to the majority's \"reasonable inference\" that C.C. \"viewed the arrest of his cousin for marijuana possession as a crime against his cousin\" (majority op at 716), C.C. stated [*14] just the opposite: \"Well, I mean, my cousin did the wrong thing and had what he had and bringing it into the house. And that was a bad thing right here.\" When the majority offers its own nonpretextual reason that C.C. \"viewed the arrest of his cousin as a 'raid' by police\" (majority op at 716), the majority is making its own factual determination that \"raid\" meant something illegitimate, ignoring common parlance [FN6] and this own Court's opinions [FN7] {**42 NY3d at 737} describing legitimate police actions as \"raids.\" The record evidence suggests that the prosecutor did not share the majority's antipathy to the word \"raid\": a non-Black panelist said that her friend's husband had been arrested in a Bronx \"drug raid,\" yet the prosecutor did not challenge or even ask further questions of that panelist. Hecker does not permit an appellate court to search the record for facts that would support reasons not given by the People as a basis for striking a juror and conclude that those would have been sufficient had the People asserted them. Reasons not asserted by the People as a basis for a peremptory strike, even if supported in the record, are legally irrelevant under Batson , because a Batson inquiry does not attempt to determine whether a different prosecutor (or the majority of our Court) might have been able to come up with nonpretextual reasons to strike a juror, but whether this prosecutor actually struck the juror solely for nondiscriminatory reasons. That inquiry depends on what the prosecutor said, not on what the prosecutor might have said but didn't. By allowing an appellate court to arrive at its own nonpretextual reasons found somewhere in the record when the People did not assert those as the reasons they struck a juror who was a member of a protected classification, the majority has undermined the fundamental purpose of Batson . Indeed, even during a Batson hearing, when a prosecutor provided a new reason for a strike after defense counsel pointed out that the originally proffered reasons were factually untrue, the United States Supreme Court observed that \"[i]t would be difficult to credit the State's new explanation, which reeks of afterthought\" ( Miller-El , 545 US at 246). {**42 NY3d at 738} Batson rests on a subjective determination of a prosecutor's motive: Did race (or some other protected classification) form any part of the reason why the prosecutor struck a juror? If so, a new trial is warranted because as a matter of due process and equal protection, we will not allow such discrimination against prospective jurors or violations of a defendant's constitutional rights to be sanctioned by the court. III. A. The majority's struggle to interject its own state of mind into that of the prosecutor's illustrates why the Batson test itself is fraught with difficulty and should be abandoned in favor of an objective test. Because the Batson test \"leave[s] us with a subjective understanding of the concept of discriminatory intent in the peremptories context\" (Robin Charlow, Tolerating Deception and Discrimination after Batson , 50 Stan L Rev 9, 37 [1997]), it can provide cover for parties who intend to discriminate by allowing them to obscure their discriminatory intent behind plausible, facially neutral justifications ( see e.g. People v Bolling , 79 NY2d 317, 330 [1992, Bellacosa, J., concurring] [*15] [\"Unfortunately, the Batson procedural hurdles have become 'less obstacles to racial discrimination than they are road maps' to disguised discrimination\"], quoting Brian J. Serr & Mark Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of A Delicate Balance , 79 J Crim L & Criminology 1, 59 [1988]). Furthermore, because it focuses solely on the nonmoving party's subjective intent to discriminate, the Batson test is poorly calibrated to detect discrimination deriving from implicit bias, which is likely more common than intentional discrimination deriving from conscious racial animus. [FN8] {**42 NY3d at 739} Justice Marshall anticipated those concerns in his Batson concurrence: \"[W]hen a defendant can establish a prima facie case, trial courts face the difficult burden of assessing prosecutors' motives. Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons. How is the court to treat a prosecutor's statement that he struck a juror because the juror had a son about the same age as defendant . . . ? If such easily generated explanations are sufficient to discharge the prosecutor's obligation to justify his strikes on nonracial grounds, then the protection erected by the Court today may be illusory. \"Nor is outright prevarication by prosecutors the only danger here. '[I]t is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.' A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is 'sullen,' or 'distant,' a characterization that would not have come to his mind if a white juror has acted identically. A judge's own conscious or unconscious racism may lead him to accept such an explanation as well supported\" ( Batson v Kentucky , 476 US 79, 105-106 [1986, Marshall, J., concurring] [citations omitted]). Six years later, in People v Bolling , Judge Bellacosa noted that \"[t]ime and experience with many cases have proven the prescience of Justice Marshall's observations\" with respect to the shortcomings of the Batson remedy (79 NY2d at 327 [Bellacosa, J., concurring]), and proclaimed \"[i]t is time for the Legislature to come to terms with the undisputed fact that 'peremptory challenges constitute a jury selection practice that permits \"those to discriminate who are of a mind to discriminate,\" ' and that the Batson effort has failed to fulfill its stated goal of eradicating invidious discrimination from the jury selection process\" ( id. at 331 [citations omitted]). {**42 NY3d at 740} What was evident to some shortly after Batson has been borne out by research over the past four decades: \"Even in extreme instances of bias—such as the exclusion of every Black member of the venire . . . it would be relatively easy to generate multiple, race-neutral justifications\" (Samuel R. Sommers & Michael I. Norton, Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure , 31 Law Hum Behav 261, 269 [2007]; see also Jeffrey Bellin & Junichi P. Semitsu, Widening Batson's Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney , 96 Cornell L Rev 1075, 1106 [2011] [\"Batson, as currently applied, is unable to prevent the use of race in jury selection because its dictates are so easily avoided\"]). [*16] B. In the past several years, other states have addressed Batson's inherent shortcomings by adopting an objective standard, which reduces the influence of racial bias in both its conscious and unconscious forms. In 2018, the State of Washington adopted, in the form of General Rule 37, an objective standard for determining whether a peremptory challenge should be disallowed. Under that rule, \"[i]f the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge\" (Wash Ct Gen Rules 37 [e]). Following Washington's lead, in 2020, the California legislature adopted section 231.7 to the California Code of Civil Procedure, which provides that the \"court shall consider only the reasons actually given\" and shall disallow use of a peremptory strike if \"the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge\" (Cal Civ Pro Code § 231.7 [d] [1]). [FN9] {**42 NY3d at 741} Shortly thereafter, the New Jersey Supreme Court observed that \"implicit bias is no less real and no less problematic than intentional bias\" and that \"[t]he effects of both can be the same: a jury selection process that is tainted by discrimination\" ( State v Andujar , 254 A3d 606, 623 [NJ 2021]). Holding that the use of peremptory challenges driven by implicit bias violated the New Jersey State Constitution, the court modified step three of New Jersey's Batson test to eliminate the requirement that the nonmoving party intended to discriminate, to reduce the use of peremptory challenges driven by implicit bias ( id. at 622-623). Two years ago, the New York State Justice Task Force (the Task Force) recommended amending Criminal Procedure Law § 270.25 by adopting a \"reasonable person standard\" ( see Recommendations Regarding Reforms to Jury Selection in New York at 15, New York State Justice Task Force [Aug. 2022], https://www.nyjusticetaskforce.org/pdfs/Report-on-Recommendations-Regarding-Reforms-to-Jury-Selection-in-New-York.pdf). [FN10] Under that standard, at Batson step three, the trial court evaluates the nonmoving party's proffered reason by asking \"[w]hether, in the view of a reasonable person, the race of a juror was a factor in the exercise of the peremptory challenge. If the court determines that the answer is yes, then the peremptory challenge shall be denied\" ( id .). Although the Task Force's recommended \"reasonable person standard\" does not specifically incorporate consideration of implicit bias, because it would replace the current subjective standard with an objective one, it would [*17] represent a significant improvement over our current Batson test because it removes {**42 NY3d at 742} the requirement of the court's evaluation of the nonmoving party's subjective intent to discriminate. Instead, the \"reasonable person standard\" asks the court to consider whether, from an outside person's perspective, it appears that race played any role at all, increasing the likelihood of empaneling a \"jury selected by racially neutral criteria\" ( People v Childress , 81 NY2d 263, 267 [1993]) Beyond the obvious virtues of relying on a test taken from an objective perspective that will be consistent from court to court and trial to trial, and of rooting out implicit biases, not just intentional ones, the use of an objective standard removes some of the stigma attached to a lawyer's failed attempt to justify a peremptory strike, because the rejection of a strike does not ascribe discriminatory intent to the lawyer: \"No one wishes to accuse those with whom they regularly associate, both professionally and often personally, of moral wrongdoing. Yet virtually every Batson ruling potentially carries such a stigma. . . . Batson violations necessarily involve findings of such socially unacceptable behavior as intentional race or sex discrimination, as well as false representations of the reasons for those unsociable acts. . . . [R]ulings that an attorney has purposefully discriminated by race or sex and then lied about having done so seem freighted with a dimension of personal moral delinquency\" (Robin Charlow, Batson \"Blame\" and its Implications for Equal Protection Analysis , 97 Iowa L Rev 1489, 1493 [2012]). Our recent decision in People v Boone (30 NY3d 521 [2017]), holding that when a cross-racial eyewitness identification is introduced to prove the identity of a criminal defendant, the defendant is entitled to a jury instruction on the frequent unreliability of such identifications, underscores our court's commitment to eliminating racial bias in the Unified Court System, as does the Unified Court System's operation of its robust Office of Justice Initiatives. The majority's decision undermines that overarching goal. [FN11] Because our Court is now unwilling to apply the Batson test in a meaningful manner, we can only {**42 NY3d at 743} hope that the legislature will implement measures to reduce the effect of bias in the selection of jurors. Judges Garcia, Singas and Pritzker [FN*] concur. Chief Judge Wilson dissents in an opinion, in which Judges Rivera and Troutman concur. Judge Halligan took no part. Order affirmed. Footnotes Footnote 1: K.L. was stricken on consent of defendant, obviating any need for the People to exercise a peremptory strike as to that juror. Footnote 2: The facts of Foster v Chatman (578 US 488 [2016]), relied on by the dissent, are strikingly different. In Foster , the prosecutor's voir dire notes and other documentary evidence contained considerable evidence that the People had taken into account the race of the jurors as part of their deliberations as to which jurors to strike, with the Supreme Court observing that the \"sheer number of references to race in [the prosecution's] file is arresting\" ( id. at 513). A \"compelling\" showing of disparate treatment of Black and non-Black prospective jurors, combined with \"shifting explanations, . . . misrepresentations of the record, and the persistent focus on race in the prosecution's file,\" left the Supreme Court with the \"firm conviction that the strikes [in question] were motivated in substantial part by discriminatory intent\" ( id. at 512-513 [internal quotation marks omitted]). To be sure, such conspicuous evidence of racial motivation is not required for a defendant to sustain the ultimate burden of persuasion on pretext. Nonetheless, the ultimate burden of persuasion on pretext rests on defendant and, here, the People's race-neutral explanations find support in the record. Footnote 3: It is unclear why the dissent includes other potential jurors in its analysis. A.S., who was struck for cause, and T.C., on whom the People exercised a peremptory strike, are not at issue in this appeal. Footnote 4: To be sure, there have been many calls for the reform of peremptory strikes ( see generally Commonwealth v Fernandes , 487 Mass 770, 776 n 6, 170 NE3d 286, 298 n 6 [2021] [\"peremptory challenges themselves are not essential to the constitutional guarantee of a fair trial by an impartial jury, and some have advocated for their outright elimination\"]; see also New York State Justice Task Force, Recommendations Regarding Reforms to Jury Selection in New York [Aug. 2022], http://www.nyjusticetaskforce.com/pdfs/Report-on-Recommendations-Regarding-Reforms-to-Jury-Selection-in-New-York.pdf). However, as the law stands, our review is limited to whether there was record support for the trial court's determination. Indeed, defendant neither sought below nor seeks before this Court an alteration to Batson such as that proposed by the dissent. Footnote 1: The majority observes that the ability to arrest the defendant for trespass \"does little to mitigate the concern that, if he was not identified by the victims as one of the robbers, the perpetrators of that crime might have remained at large in the community\" (majority op at 720). But that observation skirts the problem here: an impermissibly suggestive showup increases the probability that the police have apprehended the wrong person—which not only leaves the perpetrator at large in the community, but gives the false sense of security that the perpetrator is in police custody. The majority's other observations do not advance its position: Mr. Wright was not \"shown to the witnesses with any evidence of the stolen property\" ( id. at 721) because (unlike the situation in Riley ) Mr. Wright was not found with any evidence of the stolen property, which increases the probability that he was not the robber. Mr. Wright \"was not shown handcuffed in the back of a police car\" ( id. at 720-721), but the witness saw him being removed from the back of a police car with his hands behind his back—hardly a meaningful distinction in terms of suggestiveness. Footnote 2: This is not, as the majority claims, a \"transference\" theory between the first and third Batson steps ( see majority op at 718). At step one, the trial court made findings of fact that Mr. Wright had demonstrated prima facie that the prosecutor struck C.C. solely because of C.C.'s race. In view of that factual finding, the evidence tendered by the People at step two, providing some nondiscriminatory reasons for the strike—even if true—is at most legally sufficient to show that the prosecutor had mixed motives, some permissible, some not. As our case law and United States Supreme Court case law firmly establishes, and the majority concedes, a mix of discriminatory and nondiscriminatory motives still establishes a Batson violation ( see Luciano , 10 NY3d at 505; Smith , 966 A2d at 369). Footnote 3: The People now speculate that \"[p]erhaps [the prosecutor] meant to refer to the additional cousins who were arrested instead of 'friends.' \" However, \"our review power is limited to the examination of [the] Supreme Court's pretext determination in light of the reasons placed on the record by\" the prosecutor ( Hecker , 15 NY3d at 657), and the reason given here was that C.C. had friends involved in multiple arrests. The prosecutor's mischaracterization that friends of C.C.'s were involved in multiple arrests is strong evidence that the prosecutor was engaged in fabricating pretextual reasons to strike C.C. Footnote 4: In an attempt to distinguish Foster , the majority points to other portions of Foster that reference the record in that case. However, as the portion quoted above makes clear, this part of Foster' s analysis relates to the prosecutor's race-based differential use of strikes for otherwise similarly situated jurors, not anything having to do with the \"prosecutor's voir dire notes and other documentary evidence\" (majority op at 717-718 n 2). Footnote 5: \"THE COURT: [C.C.] did explain that number of people arrested in the house that he was present concerning marijuana. I recall that. In his background. Okay.\" Footnote 6: Media and law enforcement agencies use the term \"raid\" to describe legitimate law enforcement actions ( see e.g. Retired Vice Detective and Seven Active Duty NYPD Police Officers Indicted for Involvement with Prostitution Ring in Queens, Brooklyn, and Nassau Counties , NYPD Press Release, Sept. 13, 2018, https://www.nyc.gov/site/nypd/news/pr0913/retired-vice-detective-seven-active-duty-nypd-police-officers-indicted-involvement-with#/0 [retired detective indicted when he \"allegedly used his contacts within the NYPD to thwart raids by paying for confidential police information\" (emphasis added)]; Fentanyl Dealer Sentenced to 20 Years in Prison , DEA Press Release, Mar. 18, 2024, https://www.dea.gov/press-releases/2024/03/18/fentanyl-dealer-sentenced-20-years-prison [\"Mr. Ray admitted that during a 2019 raid on his apartment, law enforcement seized more than 28,000 counterfeit fentanyl pills weighing more than 12.5 kilograms. During subsequent raids on the homes of two coconspirators, law enforcement seized an additional 114,000 counterfeit fentanyl pills\" (emphasis added)]). Footnote 7: See e.g. Ferreira v City of Binghamton , 38 NY3d 298 , 317 (2022) (describing lawful no-knock search warrants as \"raids [that] are often conducted in the early-morning hours to catch people off-guard\"); People v Mirenda , 57 NY2d 261, 264-265 (1982) (upholding conviction where \"the police, armed with a search warrant\" conducted a \"raid on a Yonkers garage\"). Footnote 8: See e.g. Caren Myers Morrison, Negotiating Peremptory Challenges , 104 J Crim L & Criminology 1, 4-5 (2014) (\"[T]he Batson framework relies on apparently commonsense assumptions about human behavior [that] are contrary to what we know about human mental processes and the influence of race on decisionmaking. . . . [ Batson is] inconsistent with recent advances in cognitive social psychology. While long suspected, there is now substantial empirical evidence that most of us labor under some amount of implicit bias against racial minorities, even when we believe ourselves to be unbiased. . . . It is time to subject Batson to behavioral realism—the demand 'that the law account for the most accurate model of human thought, decisionmaking, and action provided by the sciences' \"), quoting Jerry Kang & Kristin Lane, Seeing through Colorblindness: Implicit Bias and the Law , 58 UCLA L Rev 465, 468 (2010). Footnote 9: Acknowledging the ubiquity and intractability of implicit bias, those states explicitly ascribe the to the objective observer cognizance of that phenomenon. Washington, for example, defines an \"objective observer\" as one who \"is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors\" (Wash Ct Gen Rules rule 37 [f]; see also Cal Civ Pro Code § 231.7 [d] [2] [A] [\"(A)n objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California\"]; Conn Rules Super Ct § 5-12 [e] [1] [\"an objective observer . . . is aware that purposeful discrimination, and implicit, institutional, and unconscious biases, have historically resulted in the unfair exclusion of potential jurors on the basis of their race, or ethnicity\"]). Footnote 10: The Justice Task Force is composed of distinguished \"prosecutors, defense attorneys, judges, law enforcement personnel, legal scholars, legislative representatives, executive branch officials, forensic experts and victim advocates\" (New York State Justice Task Force, Mission Statement, About The Task Force , http://www.nyjusticetaskforce.com/mission.html [accessed June 10, 2024]). Its mission is \"to promote fairness, effectiveness, and efficiency in the criminal justice system; to eradicate harms caused by wrongful convictions; to further public safety; and to recommend judicial and legislative reforms to advance these causes throughout the State of New York\" ( id .). Footnote 11: Likewise, the majority's statements that \"our review is limited to whether there was record support\" (majority op at 719 n 4) and \"the only Batson issue before us on this appeal is whether the record supports the trial court's determination at step three\" ( id. at 718) are incompatible with our powers and responsibilities. Batson itself is a court-made rule, as are the improvements to Batson adopted by the Supreme Courts of Washington and New Jersey; and our Court has regularly announced new rules to promote the fairness of the trial process (most recently in Boone ). Footnote *: Designated pursuant to NY Constitution, article VI, § 2. "
},
{
"from": "gpt",
"value": "Courts below did\nnot err in finding that showups were not suggestive even though defendant\nwas handcuffed and in the presence of police officers. Showups were\nconducted within a few blocks of the crime scene and immediately after\nthe robbery and defendant's apprehension; showups conducted separately;\nand the witnesses did not view him in the back of police care or with any\nof the stolen property."
}
]
|
2024.03564 | [
{
"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 Collins 2024 NY Slip Op 03564 [229 AD3d 846] July 3, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] (July 3, 2024) The People of the State of New York, Respondent, v Isha T. Collins, Appellant. Jeffrey R. Parry, Oneida, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Nathan M. Bloom of counsel), for respondent. Pritzker, J. Appeal from a judgment of the County Court of Chemung County (Christopher P. Baker, J.), rendered August 28, 2017, upon a verdict convicting defendant of the crimes of attempted robbery in the second degree (two counts) and assault in the third degree. In April 2017, defendant was charged by indictment with two counts of attempted robbery in the second degree and one count of assault in the third degree. The charges stemmed from an incident wherein defendant and two other women were driving in a sedan when they approached the victim, who was walking down the street. Defendant got out of the car, ran up to the victim and \"started digging into\" the victim's pockets and looking through her clothes. The two other women then got out of the car and \"a scuffle\" ensued, resulting in the victim on the ground while being kicked in the head. An eyewitness honked her car's horn to get the women's attention, which caused the three women to get back into the sedan and leave. After a jury trial, defendant was convicted as charged and was sentenced to a split sentence of 90 days in jail and five years of probation on each count, to run concurrently. Defendant appeals. Defendant first contends that County Court erred by refusing to preclude the victim and the eyewitness from identifying her at trial because of an unduly suggestive showup identification. \"[A] showup identification is permissible so long as it was reasonable under the circumstances—that is, when conducted in close geographic and temporal proximity to the crime—and the procedure used was not unduly suggestive\" ( People v Colvin , 218 AD3d 1016 , 1020 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 1038 [2023]). \"A showup is not unduly suggestive if it occurs under circumstances which were not so unnecessarily suggestive as to create a substantial likelihood of misidentification\" ( People v Smith , 185 AD3d 1203 , 1207 [3d Dept 2020] [internal quotation marks and citations omitted]). \"Although the People bear the initial burden of demonstrating that the showup procedure was reasonable under the circumstances, the defendant bears the ultimate burden of proving that it [was] unduly suggestive and subject to suppression\" ( People v Gilley , 163 AD3d 1156 , 1158 [3d Dept 2018] [internal quotation marks, brackets and citation omitted], lv denied 33 NY3d 948 [2019]). As defendant concedes, the police conducted this showup promptly, and it was reasonable under the circumstances. Thus, the only question is whether the procedure used was unduly suggestive. We agree with County Court that it was not. Testimony at the Wade hearing demonstrated that, while the showup was conducted, defendant and the other two women stood in front of the green sedan in which they were pulled over while one police officer drove the victim by the women. None of the women were in handcuffs. In a separate vehicle, a state trooper drove the eyewitness by the women. After driving by, both the victim and [*2] the eyewitness identified defendant and the other two women as the perpetrators. Testimony also demonstrated that there was a police car nearby as well as two officers \"standing by with [the women].\" The Second Department has found a nearly identical showup to not be unduly suggestive—the only difference was that there, unlike here, the defendant was handcuffed when the identification occurred ( see People v Berry , 50 AD3d 1047 , 1048 [2d Dept 2008], lv denied 10 NY3d 956 [2008]). This Court's decisions are in accord ( see e.g. People v Hilton , 166 AD3d 1316 , 1320 [3d Dept 2018], lv denied 32 NY3d 1205 [2019]; People v Coleman , 144 AD3d 1197 , 1198-1199 [3d Dept 2016]; People v Mathis , 60 AD3d 1144 , 1146 [3d Dept 2009], lv denied 12 NY3d 927 [2009]). [FN1] Accordingly, County Court did not err by denying defendant's motion to preclude the victim and the eyewitness from identifying her in court. Next, defendant argues that she was denied the effective assistance of counsel when her attorney advised that she waive a Huntley hearing which, she claims, was her \"only chance\" at acquittal. \"The constitutional guarantee of effective assistance of counsel is met where a defendant was afforded meaningful representation based on the evidence, the law, and the circumstances of the particular case, viewed in totality and as of the time of the representation\" ( People v Maffei , 35 NY3d 264 , 269 [2020] [internal quotation marks, brackets and citations omitted]; accord People v Machia , 206 AD3d 1272 , 1277 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]). When an ineffective assistance of counsel claim is predicated on a single error, the error must \"involve an issue that was so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it\" ( People v Espinosa , 40 NY3d 1065 , 1066 [2023] [internal quotation marks, brackets and citations omitted], cert denied 601 US —, 144 S Ct 1107 [2024]). As relevant here, before the Wade hearing, counsel informed County Court that he spoke with defendant, and she was \"prepared to waive\" the Huntley hearing. Counsel elaborated that he advised defendant the motion \"is going to be denied,\" and \"[b]ased on that recommendation, [defendant] . . . would rather spend time meeting with [counsel] during th[e] period of time before jury selection begins.\" After the court asked defendant if she knew her rights regarding a Huntley hearing, defendant waived her right to challenge the admissibility of her statements in such a hearing. A brief summary of defendant's statements and the circumstances in which they were made adds context to counsel's decision. At trial, a police officer who arrested defendant testified that he told defendant and the two other women that they \"were going to be charged with robbery for the incident,\" and defendant responded by saying, \"[s]he owe her money, that's why we whoop her a**.\" One of the other women with defendant said something to the same effect. The three women were in separate holding [*3] cells at this time, and defendant later testified that the officer was speaking to them before that, but about \"a deer and stuff like that.\" She also testified that she did not believe she was under arrest when the statements were made, as they were \"just taken down there to be questioned.\" [FN2] Thus, had there been a Huntley hearing, the key issue would have been whether the officer informing the suspects of the charges against them was subtle interrogation. Although the officer's statement was accusatory, it was a statement of fact designed to inform the women of what would happen to them—unlikely designed to induce, provoke or encourage an incriminating response ( see People v Rivers , 56 NY2d 476, 480 [1982]; People v Durant , 6 AD3d 938 , 940 [3d Dept 2004], lv denied 3 NY3d 639 [2004]; compare People v Lanahan , 55 NY2d 711, 712-714 [1981]). Given the foregoing, defendant's motion was unlikely to be successful ( see People v Machia , 206 AD3d at 1277-1278), or, at the very least, it did not \"involve an issue that was so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it\" ( People v Espinosa , 40 NY3d at 1066 [internal quotation marks, brackets and citations omitted]). \"Further, viewing defense counsel's representation in its totality reveals that he made appropriate motions, set forth a clear trial strategy [and] effectively cross-examined witnesses\" ( People v Lozano , 203 AD3d 1231 , 1233 [3d Dept 2022]); thus, defendant received meaningful representation ( see People v Ambers , 26 NY3d 313 , 320 [2015]).We have examined defendant's remaining contentions and find them to be without merit. Garry, P.J., Clark, Aarons and McShan, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: Defendant's mention that \"[t]he arresting officer specifically stated to the victim that . . . they would drive 'past the girls to identify them' \" is not supported by the record, as that quote came from the victim's trial testimony. Footnote 2: Although this statement was elicited at trial, not at the Wade hearing, it is the only information in this record that this Court can review to gauge the likely strength of defendant's argument at a theoretical Huntley hearing. "
},
{
"from": "gpt",
"value": "Prompt\ndrive-by showup was \"reasonable under the circumstances\" and not unduly\nsuggestive even though police officers were standing in the vicinity of\ndefendant and her 2 cohorts, who were standing in front of the green sedan\nthat victim and eyewitness had observed. The 3 women were not\nhandcuffed, and the victim and the eyewitness viewed the trio separately."
}
]
|
2024.02128 | [
{
"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 Williams 2024 NY Slip Op 02128 [41 NY3d 551] April 23, 2024 Troutman, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 7, 2024 [*1] The People of the State of New York, Respondent, v David Williams, Appellant. Argued March 13, 2024; decided April 23, 2024 People v Williams , 203 AD3d 612 , reversed. {**41 NY3d at 553} OPINION OF THE COURT Troutman, J. On this appeal, we address whether Supreme Court erred when it denied defendant's motion for an independent source hearing and, instead, used an undercover police officer's prior testimony at a probable cause hearing to render a determination on whether the officer had an independent source for his prospective in-court identification of defendant. We hold that the trial court erred in admitting the undercover officer's in-court identification without a hearing record sufficient to support an independent source determination for the identification. Consequently, under the circumstances of this case, we reverse the order of the Appellate Division and order a new trial to be preceded by an independent source hearing. I. An undercover police officer bought $40 worth of heroin through an intermediary during a buy-and-bust operation in upper Manhattan in December 2016. He did not meet the seller face-to-face. Instead, the undercover followed \"several feet\" behind the intermediary and the seller as they walked along the avenue. He was far enough away that he could not hear what they said to each other. The intermediary returned from {**41 NY3d at 554} interacting with the seller and handed the undercover three glassines of heroin, after which the undercover reported to his support team that the [*2] \"actual dealer\" was wearing black pants, a white sweater, and a black hat. Minutes later, the police arrested defendant nearby. The undercover then made a confirmatory identification of defendant as the seller at the precinct parking lot a half hour after the arrest. Defendant filed an omnibus motion contending that the police lacked probable cause to arrest him and that, as a result, the court should suppress the undercover officer's confirmatory identification, the prerecorded buy money, and defendant's cell phone. The motion stated that, if it was granted, defendant would move for an independent source hearing where the People must establish that the undercover had sufficient opportunity to observe defendant during the commission of the offense to enable him to make an in-court identification of defendant at trial. The court ordered a hearing \"limited to the issue of whether there was probable cause to arrest defendant pursuant to People v Gethers , 86 NY2d 159 (1995).\" [FN1] At the hearing, the arresting officer testified regarding the circumstances surrounding defendant's arrest, and the undercover officer testified about his observations during the buy-and-bust and his subsequent confirmatory identification of defendant at the precinct. Inasmuch as the hearing was held for the limited purpose of determining probable cause and the suppression of evidence, the undercover officer's testimony about the seller's appearance was limited. The undercover testified that he had never interacted with the seller before the date in question and did not interact with the seller directly during the buy-and-bust. Although the undercover described the seller's clothes, he did not provide a physical description of the seller. He did, however, testify about his close proximity to the seller—close enough to hear that the intermediary and the seller were having a conversation, but not their words. Nevertheless, his testimony did not address how long the seller was within his sight or the nature of his confirmatory identification of defendant. After the hearing, Supreme Court ruled that the police lacked probable cause to arrest defendant, finding the arresting {**41 NY3d at 555} officer's testimony unreliable and \"tailored to meet constitutional muster.\" The court also suppressed, as fruits of the illegal arrest, both the undercover officer's confirmatory identification and the physical evidence recovered from defendant. Defendant then moved for an independent source hearing to determine whether, despite the suppression of his confirmatory identification, the undercover officer would be allowed to identify defendant at trial. Denying the motion, the court reasoned that a separate hearing was not necessary because the undercover's testimony at the probable cause hearing \"demonstrate[d] clear and convincing evidence 'that the undercover's observations before and during the alleged sale provided an independent source for' an in-court identification of Defendant at trial.\" After the undercover officer identified defendant at trial, defendant was convicted of third-degree criminal sale of heroin and sentenced to six years in prison. The Appellate Division affirmed, concluding that \"the hearing court providently exercised its discretion in denying defendant's request for a separate independent source hearing\" based on the testimony at the probable cause hearing about the undercover officer's opportunity to observe defendant at the time of the drug sale and the description of the confirmatory identification (203 AD3d 612, 613 [1st Dept 2022]). Consequently, the Appellate Division concluded that the undercover officer was properly permitted to identify defendant in court. A Judge of this Court granted defendant leave to appeal (39 NY3d 965 [2022]). We now reverse and order a new trial to be preceded by an independent source hearing on the admissibility of the undercover officer's in-court identification. II. [1] As an initial matter, contrary to the prosecution's contention otherwise, the question of whether defendant was entitled to a separate independent source hearing is preserved. In his omnibus motion, defendant requested that, in the event the court suppressed the undercover officer's confirmatory identification as the product of an unlawful seizure, it should hold an independent-source hearing \"pursuant to People v Gethers (86 NY2d 159 [1995]).\" Defendant then renewed his request when the court suppressed the confirmatory identification, again citing Gethers (86 NY2d at 159). These measures \"made the {**41 NY3d at 556} defense's 'position' . . . 'known to the court,' thereby furnishing\" the court \"with an opportunity\" to provide him with the relief he sought ( People v Sanders , 39 NY3d 216 , 220 n [2023], quoting CPL 470.05 [2]). In response, the court \"expressly decided\" against holding a separate hearing. A preserved \"question of law\" is therefore before us (CPL 470.05 [2]). [*3] III. Turning to the merits, the exclusionary rule provides that \"when the police have acted illegally, evidence which has been come at by exploitation of that illegality should be suppressed\" ( People v Gethers , 86 NY2d 159, 161-162 [1995] [internal quotation marks omitted], quoting Wong Sun v United States , 371 US 471, 488 [1963]). One commonly advanced corollary to this rule is the independent source doctrine, under which a court need not suppress evidence if the People demonstrate that it was \" 'acquired by means sufficiently distinguishable from the arrest to be purged of the illegality,' i.e., that the taint of the illegal arrest was 'attenuated' \" ( People v Jones , 21 NY3d 449 , 455 [2013] [citations omitted]). Applying these principles to identifications, \"once the pretrial identification . . . is shown to be impermissible and improper, any in-court identifications, though not per se excludable, are not to be received in evidence 'without first determining that they were not tainted by the illegal [identification] but were of independent origin' \" ( People v Ballott , 20 NY2d 600, 606 [1967]). To accomplish this a court must hold a formal pretrial \"hearing as to independent source\" ( People v Burts , 78 NY2d 20, 24 [1991]; see People v Marshall , 26 NY3d 495 , 506 [2015]; Gethers , 86 NY2d at 163). A court may conduct this hearing in conjunction with another pretrial hearing, such as a suppression hearing, or as its own separate hearing. No matter the moniker given to the hearing, it must \"give the People an opportunity to prove by 'clear and convincing evidence' that the in-court identification was based upon observations of the suspect other than the [illegal] identification\" ( Ballot , 20 NY2d at 606). \"Only if the prosecution can establish this may the in-court identification be admitted for the consideration of the jury\" ( id. ). Otherwise, \"the court must exclude that identification\" ( id. at 606-607). The need for a hearing as to independent source extends to cases like this where a confirmatory identification is the product of an illegal arrest. As we held in Gethers , a police officer's {**41 NY3d at 557} in-court identification of a defendant is \" 'improperly admitted [where] there was no evidence at the suppression hearing of an independent source' upon which the hearing court could rely to find that the in-court identification was ' \"come at by . . . means sufficiently distinguishable to be purged of the primary taint\" ' \" of the defendant's illegal arrest (86 NY2d at 163 [citations omitted]). In evaluating whether the People have met their burden to demonstrate by clear and convincing evidence a source independent from the illegal arrest, courts should consider any information relevant to whether there is a \"causal relationship between the arrest and the identification\" ( Gethers , 86 NY2d at 163), including the length and quality of the witness's opportunity to observe the defendant prior to the arrest, the accuracy of the witness's description of the defendant prior to the arrest, and the witness's prior familiarity with the defendant ( see Ballot , 20 NY2d at 607; see also United States v Wade , 388 US 218, 241 [1967]). [FN2] Courts should also consider the nature and circumstances of the suppressed identification as they relate to the likelihood that the suppressed identification would taint any subsequent identification ( Gethers , 86 NY2d at 163; see United States v Crews , 445 US 463, 472-473 [1980]; People v Brnja , 50 NY2d 366, 369 n 1 [1980]; see also Marshall , 26 NY3d at 508 n 3). [2] Here, the testimony adduced at the limited suppression hearing focused primarily on whether there was probable cause for defendant's arrest, which turned only on whether defendant matched the undercover officer's description of the seller as a black male wearing a white top and jeans. The undercover's testimony at the suppression hearing was devoid of any proof that his in-court identification would be derived from his pre-arrest interaction with the seller, rather than the postarrest confirmatory identification of defendant. While the undercover officer described the seller's clothes, this did not establish a reliable basis for an in-court identification of defendant. The undercover provided no other details from which the court could conclude that he had a meaningful opportunity to view the seller at the time of the buy. He testified that he had no {**41 NY3d at 558} prior interactions with the seller, and he did not testify as to any physical description that he may have given the arresting officers. Nor did his testimony provide any description of the confirmatory identification procedure, such that the court could compare the two interactions and be assured that the in-court identification could be made without relying on the suppressed identification. As such, the hearing did [*4] not explore the undercover's pre-arrest observations, if any, of the seller's face, physical features, complexion, build, hairstyle, or height during the buy-and-bust operation. The People's reliance on our decision in People v Marshall (26 NY3d 495 [2015]) is unavailing. In Marshall , we held that a trial court improperly denied a defendant's request for a full Wade hearing to determine the suggestiveness of a prosecutor's pretrial display of the defendant's arrest photograph to the complainant ( see id. at 507-508). We decided that the error did not require reversal, however, because there was an independent source for the complainant's in-court identification of the defendant. That independent source included the complainant's testimony at the limited \"pre- Wade \" hearing describing her assailant—indicating that she saw the defendant at the hospital by chance and recognized the defendant as the assailant prior to the photo display—and asserting that the photo display did not affect her independent recollection or recognition of the defendant ( see Marshall , 26 NY3d at 506-508). Consequently we concluded, \"While there is some support in the hearing transcripts for defendant's argument that the hearing was circumscribed, the record also establishe[d] that defense counsel did, in fact, cross-examine complainant about the hospital identification\" ( id. at 509). Additionally, we held that the defendant's request for another hearing—despite evidence of an independent source of complainant's identification—encouraged \"the unnecessary expenditure of judicial resources\" ( id. ). By comparison, here, the People presented practically no testimony regarding the undercover officer's observations of the seller's appearance to support a determination that he had a sufficient independent basis to identify defendant in court. This error requires reversal. Because the record of the probable cause hearing provided an insufficient basis for an independent source determination, defendant was entitled to an independent source hearing, as requested. In light of our determination, we do not reach defendant's remaining arguments. {**41 NY3d at 559} Accordingly, the order of the Appellate Division should be reversed and a new trial ordered, to be preceded by an independent source hearing. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Halligan concur. Order reversed and a new trial ordered, to be preceded by an independent source hearing. Footnotes Footnote 1: Although the court initially termed it a \" Dunaway / Wade \" hearing, it was later confirmed that there was to be no Wade component to the hearing. Footnote 2: Unlike in the context of determining whether an identification is suggestive, the \"nature of a police officer's duties, special training[,] and experience\" on their own \"simply have no relevance in a determination of whether an identification is the product of an illegal arrest\" ( Gethers , 86 NY2d at 163). "
},
{
"from": "gpt",
"value": "Trial court\nerred in admitting the undercover officer’s in-court identification without a\nhearing record sufficient to support an independent source determination\nfor the identification."
}
]
|
2024.06079 | [
{
"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 Flynn 2024 NY Slip Op 06079 [233 AD3d 1087] 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] The People of the State of New York, Respondent, v Bilal A. Flynn, Appellant. Kathy Manley, Selkirk, for appellant. F. Paul Battisti, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent. Fisher, J. Appeal from a judgment of the County Court of Broome County (Joseph F. Cawley, J.), rendered June 17, 2020, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (seven counts), criminal possession of a controlled substance in the fourth degree and criminally using drug paraphernalia in the second degree (two counts). Defendant was charged by indictment with seven counts of criminal possession of a controlled substance in the third degree (counts 1-7), criminal possession of a controlled substance in the fourth degree (count 8) and two counts of criminally using drug paraphernalia in the second degree (counts 9 and 10), following the recovery of, among other things, cocaine, heroin, drug paraphernalia, two cell phones and almost $1,000 in cash during the execution of a search warrant on a residence owned by his girlfriend. Defendant moved to suppress the evidence seized pursuant to the search warrant, which such motion was denied by County Court. Following a jury trial, defendant was convicted as charged. County Court thereafter sentenced defendant, as a second felony offender, to a concurrent prison term of nine years, to be followed by three years of postrelease supervision, for each of his convictions of counts 1 through 7, and lesser concurrent terms of incarceration for his remaining convictions. Defendant appeals. Defendant challenges the legal sufficiency and weight of the evidence as to counts 4, 5, 7 and 8. Initially, although defendant failed to preserve his challenge to the legal sufficiency of the evidence, [FN1] in conducting a weight of the evidence analysis, \"we nevertheless must determine whether the People proved each element of the crimes beyond a reasonable doubt\" ( People v Leppanen , 218 AD3d 995 , 996 [3d Dept 2023], lv denied 40 NY3d 1081 [2023]). At trial, the People presented the testimony of several law enforcement officers who were involved in the investigation and the execution of the search warrant, as well as corresponding documentary, photographic and physical evidence. According to the testimonial evidence, upon execution of the search warrant, defendant was found alone in the residence and in a common area. A search of a closet in the primary bedroom resulted in the discovery of three plastic baggies containing different quantities of crack cocaine and powdered cocaine, and one \"vented\" jar containing a plastic baggie of heroin sitting on a quantity of rice. Some of the baggies were folded into a \"knotted wrap\" or \"corner wrap,\" and all of these substances were confirmed in field tests, and then each weighed both in its original packaging and then by itself. A forensic scientist with the Southern Tier Crime Laboratory testified that, out of the four plastic baggies provided to her, she tested the two largest packages, in which one tested positive for the presence of cocaine and the other for heroin; each substance also had an aggregate weight in excess of one [*2] -half ounce. [FN2] A detective testified that drug sellers typically use knotted wraps to sell drugs and that the drug paraphernalia discovered in the closet next to the baggies—including two digital scales with a white residue, razor blades, two plastic \"scoop\" spoons, a dollar bill, rice, an empty jar, two plastic straws and a box of plastic fold-top sandwich bags—was consistent with drugs being sold. According to the detective, defendant was also searched and found to be in possession of approximately $1,000 in cash—the overwhelming majority of which were $20 bills, a common bill found on individuals when drugs are being sold. Other testimony indicated that a subsequent search of defendant's cell phones revealed a photograph taken of a knotted wrap and messages by defendant using certain drug vernacular, including known street names for drugs, and offers for specific amounts of drugs with prices that were consistent with what was recovered in the search. Much of this evidence was corroborated by the girlfriend, who testified for the People pursuant to a cooperation agreement, and who confirmed the types of drugs present and further explained that defendant would purchase the drugs in bulk, store them in the closet, and repackage the drugs into smaller baggies for selling as seen in the messages on his cell phone. For his part, defendant testified that he had been warned by others about the girlfriend selling drugs, but ignored the warnings, had no idea that drugs were being sold in the home, and he had \"never\" seen her packaging drugs. He further denied being in possession of any of the drugs and ever going to purchase drugs in bulk to resell. Relating to the content on the cell phones, he contended that the drug-related communications had been made by his girlfriend and admitted that he took the photograph of a knotted wrap, but that he did so because he found it in the house, and he had sent it to the mother of his child. To that end, he further testified that he \"loved\" the house and really wanted to purchase it from the girlfriend's mother, but that she changed her mind and decided to sell it to her daughter instead of him—although he had made one payment toward purchasing it. He further testified that he was engaged in multiple businesses, and his full-time job was demanding and caused him to travel for long periods of time—including during the relevant time period, in which he was also hospitalized in Brooklyn for pneumonia. In challenging the weight of the evidence, defendant contends that the two baggies of alleged drugs tied to counts 4, 5, 7 and 8 were never lab tested and, therefore based on People v Swamp (84 NY2d 725, 733 [1995]), the weight of the evidence is insufficient to sustain these convictions beyond a reasonable doubt. As charged here, defendant's convictions for possessing cocaine must be based upon evidence showing that he either knowingly and unlawfully possessed any amount \"with intent to sell it\" under counts 4 [*3] and 5 (Penal Law § 220.16 [1]), possessed \"one-half ounce or more\" of the drug under count 7 (Penal Law § 220.16 [12]), or possessed \"one-eighth ounce or more\" under count 8 (Penal Law § 220.09 [1]). Although a contrary verdict as to these four counts would not have been unreasonable given the failure to obtain evidence of a chemical analysis of these two pieces of evidence, contrary to defendant's contentions, the failure to conduct a lab test does not automatically result in a reversal of the charges when conducting a weight of the evidence review. As this Court has recognized in People v Van Hoesen (12 AD3d 5 [3d Dept 2004], lv denied 4 NY3d 804 [2005]), the Court of Appeals did not hold in People v Swamp that a formal laboratory test was required to prove guilt beyond a reasonable doubt—only that a defendant may not be found guilty beyond a reasonable doubt based \" 'solely' \" on the result of a field test ( People v Van Hoesen , 12 AD3d at 9 n 2; quoting People v Swamp , 84 NY2d at 733; see Matter of Angel A. , 92 NY2d 430, 435 [1998]). Here, we have more than just a positive field test—which was performed by an experienced detective, and where his testimony regarding the field test and his subsequent weighing of each drug was uncontroverted at trial ( see Matter of Angel A. , 92 NY2d at 435). For instance, each baggie was found in the same closet as the lab-confirmed substances—one of them even in the same black pouch—and \"the jury could reasonably infer from the positive results of those tests that the remaining [packages], which were recovered . . . at the same time, also contained a controlled substance since the untested\" substances were in the same style of packing and the contents appear to be similar in nature ( People v Gillyard , 70 AD3d 854 , 855 [2d Dept 2010], lv denied 14 NY3d 840 [2010]). The other baggie was packaged into a knotted wrap and was found in a silver lock box on the same bedroom closet shelf as the tested drugs, and contained the razor blades, scales and box of sandwich baggies, therefore permitting the jury to infer defendant's intent to sell it from the quantity seized, wrapping materials and the large sum of cash that was found on his person ( see People v Smith , 201 AD3d 1126 , 1130 [3d Dept 2022], lv denied 38 NY3d 1035 [2022]; see also People v Oates , 222 AD3d 1271 , 1273 [3d Dept 2023]). Further testimony confirmed the appearance and form of the substances to be powdered cocaine and crack cocaine, not just from multiple law enforcement officers and two drug task force detectives who had experience handling each narcotic, but also of the girlfriend. Indeed, based on her familiarity and knowledge of drugs, she confirmed that the substances in the untested knotted wraps were powdered cocaine and crack cocaine that defendant would sell to customers ( see People v Christopher , 161 AD2d 896, 897-898 [3d Dept 1990], lv denied 76 NY2d 786 [1990]; see generally People v Cruz , 298 AD2d 905, 905 [4th Dept 2002], lv denied 99 [*4] NY2d 557 [2002]). The girlfriend further testified as to the process of preparing the drugs for sale, specifically that she observed defendant on prior occasions take out the substances, weigh them and then package them in a knotted wrap for sale to customers as crack cocaine or powdered cocaine—and she would sometimes complete the sales for him ( see People v Fulton , 28 AD3d 1180 , 1181 [4th Dept 2006], lv denied 7 NY3d 756 [2006]). She also translated multiple text messages from defendant's phone, confirming certain communications were referring to the sale of the same drugs that were recovered in the search. Critically, at no point during the trial did defendant challenge that the substances were not controlled substances. Accordingly, when viewing this evidence in a neutral light, we cannot say that the verdict with respect to the challenged convictions under counts 4, 5, 7 and 8 were against the weight of the evidence ( see People v Smith , 201 AD3d at 1130-1131; People v Gillyard , 70 AD3d at 855; People v McGriff , 201 AD2d 672, 673 [2d Dept 1994], lv denied 83 NY2d 913 [1994]; People v Christopher , 161 AD2d at 897-898; see also People v Imes , 226 AD3d 1080 , 1082 [3d Dept 2024], lv denied 41 NY3d 1019 [2024]). To this further point, defendant contends that he received ineffective assistance of counsel because his attorney failed to, among other things, challenge the lack of a lab test for the two baggies of substances that were not lab tested and failed to preserve other key issues at trial. We disagree. \"A claim of ineffective assistance of counsel must be supported with proof that the attorney failed to provide meaningful representation and that there were no strategic or other legitimate explanations for counsel's allegedly deficient conduct\" ( People v Njoku , 218 AD3d 1047 , 1051 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 1093 [2024]). The record before us reveals a very capable performance by trial counsel, who presented a cogent theory at trial that the girlfriend had been the one who orchestrated the drug sales unbeknownst to defendant and that the People overstated the amount of time he spent at the residence and was around the drugs, but that, following their arrests, the girlfriend and her mother ultimately turned on defendant in order to get her a lesser sentence. In doing so, defense counsel appropriately highlighted that the investigators were entirely unaware of defendant until after the execution of the search warrant—of which, such warrant had only mentioned the girlfriend—and that defendant was in the process of purchasing the house from the girlfriend's mother before the incident. Trial counsel's strategy also was aimed at raising reasonable doubt on defendant's motivation and ability to commit the crimes, presenting evidence that defendant had no incentive to sell drugs because he had multiple successful jobs and a large monetary settlement from a lawsuit, and that he was not originally [*5] from the area and had few local ties—unlike the girlfriend ( see People v Truitt , 213 AD3d 1145 , 1151 [3d Dept 2023], lv denied 39 NY3d 1144 [2023]). Although defendant criticizes trial counsel for not focusing his strategy on the lack of a chemical analysis on two pieces of evidence, as discussed above, this argument lacks merit given the overwhelming evidence at trial and other lab-tested drugs and drug paraphernalia found alongside the nonconfirmed substances ( see People v Meadows , 183 AD3d 1016 , 1023 [3d Dept 2020], lv denied 35 NY3d 1047 [2020]), and, therefore, is \"merely reflective of defendant's disagreement as to trial counsel's strategies and tactics weighed with the benefit of hindsight\" ( People v Wilkins , 216 AD3d 1359 , 1365 [3d Dept 2023] [internal quotation marks, brackets and citation omitted], lv denied 40 NY3d 1000 [2023]). When considering the evidence, law and circumstances of this case, we cannot say that defendant was deprived of meaningful representation ( see People v Calafell , 211 AD3d 1114 , 1120 [3d Dept 2022], lv denied 39 NY3d 1077 [2023]; People v Machia , 206 AD3d 1272 , 1277-1278 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]; see also People v Burton , 215 AD3d 1054 , 1063 [3d Dept 2023], lv denied 40 NY3d 927 [2023]). Defendant's remaining contentions do not warrant prolonged discussion. Defendant's challenge to the indictment as duplicitous and multiplicitous is unpreserved ( see People v Agan , 207 AD3d 861 , 862 [3d Dept 2022], lvs denied 38 NY3d 1186 [2022], 39 NY3d 939 [2022]; People v Shabazz , 177 AD3d 1170 , 1172-1173 [3d Dept 2019]), and nevertheless without merit ( see People v Lee , 225 AD3d 1001 , 1001 [3d Dept 2024]; People v LaPierre , 189 AD3d 1813 , 1817 [3d Dept 2020], lv denied 36 NY3d 1098 [2021]). Defendant's contention that a key witness refused to testify because she had been intimidated by the prosecutor is unsupported in the record before us, as \"not every contact between a government agent and a potential defense witness constitutes a substantial interference with the choice to testify\" ( People v Perkins , 203 AD3d 1337 , 1340 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 38 NY3d 1035 [2022]). Lastly, as there is no record of jury selection for our review, defendant's contentions relating to a specific juror are better developed via a CPL article 440 motion ( see People v Davis , 200 AD3d 1200 , 1207 [3d Dept 2021]). Defendant's remaining contentions have been examined and found to be lacking in merit or rendered academic. Aarons, J.P., Reynolds Fitzgerald, McShan and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: At the close of the People's proof and again at the close of defendant's proof, County Court reserved defendant's right to make the necessary motions. However, the record before us fails to demonstrate whether defendant ultimately made such application. Footnote 2: This testing related to only counts 1, 2, 3 and 6. The forensic scientist testified that the crime lab policy was to only test evidence relating to the highest counts, and she therefore did not test the remaining two pieces of evidence relevant to counts 4, 5, 7 and 8. "
},
{
"from": "gpt",
"value": "Prosecutor\nused peremptory challenge to strike prospective juror who had self-\nreported that she was a member of the NAACP. But defendant did not adequately preserve Batson issue. In response to defendant's initial\napplication, the trial court noted that the juror did not appear to be African-\nAmerican and asked whether the application was based solely on her\nNAACP membership. Defense counsel accepted the court's assessment\nabout the juror & did not develop a prima facie showing of discrimination."
}
]
|
2024.03320 | [
{
"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 Wright 2024 NY Slip Op 03320 [42 NY3d 708] June 18, 2024 Cannataro, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 19, 2025 [*1] The People of the State of New York, Respondent, v Freddie T. Wright, Appellant. Argued April 18, 2024; decided June 18, 2024 People v Wright , 203 AD3d 965 , affirmed. {**42 NY3d at 711} OPINION OF THE COURT Cannataro, J. Defendant appeals from an order of the Appellate Division upholding the denial of his Batson challenge to the People's exercise of peremptory strikes on two prospective jurors ( see Batson v Kentucky , 476 US 79 [1986]), and denying his motion to suppress the identification testimony of two witnesses. Applying our well settled and limited standard of review, there is record support for the determinations below that the People had valid, race-neutral reasons for striking the two prospective jurors. There is likewise record support for the conclusions of the courts below that the showup procedure used by police was not unduly suggestive. We therefore affirm. I. On the morning of March 26, 2017, two men robbed a restaurant located on Atlantic Avenue in Queens. Upon entering the restaurant, one of the robbers, a Black man wearing a red \"hoodie,\" black jacket, and a bandana over his face, approached Assistant Manager Sumintra Ramsahoye, took something wrapped in a plastic bag out of his pocket, pressed it to her neck, and told her to open the safe in the restaurant's office. Ramsahoye responded that she could not open the safe and, on the robber's demand, instead opened the drive-through cash register drawers and handed over their contents. While these events were taking place, the other perpetrator was {**42 NY3d at 712} standing next to another employee, Jordan Guzman. After the robbers ran out of the restaurant, Guzman called the police. Police Officer Bryce Blake and his partner were on duty in a marked patrol car about a block away when they received a radio call of a robbery in progress. The officers arrived at the restaurant within two or three minutes and Officer Blake observed defendant standing in the parking lot dressed in a black jacket and red hoodie. Upon seeing [*2] the patrol car, defendant fled. Officer Blake pursued defendant on foot for several minutes, eventually observing defendant enter a home through its back entrance. The homeowner advised Blake that the individual who entered the house was in the living room. The officers entered the home, found defendant sitting on a couch in the living room, and placed him under arrest. Simultaneously, other officers were driving Guzman around the neighborhood to see if he could identify the robbers. The canvassing yielded no positive results, but twice, Guzman indicated that individuals stopped by the police were not the perpetrator. Several minutes into the ride, Guzman overheard a radio call indicating that police had apprehended someone and heard one of the officers in the car say, \"I think it is the guy.\" Police then brought Guzman to the house where he identified defendant from his red hoodie and from the way his eyes and forehead looked above the bandana. Police also brought Ramsahoye to the house to make an identification. Upon arriving Ramsahoye saw defendant step out of a police vehicle with his hands behind his back and identified him as the man who robbed her based on his clothing, height, and body weight. At the suppression hearing, which took place over a year later, Guzman was able to identify defendant but Ramshoye was not. Defendant moved to suppress the identification testimony, arguing that the identification procedures were unduly suggestive. The court denied the motion, finding that the identifications were not \"overly suggestive and improper\" because they were made in a \"very short spatial and temporal time between the incident and arrest.\" Additionally, the court found that the radio communication and comment overheard by Guzman while riding with police were not so suggestive as to warrant suppression of his identification. During jury selection, defendant raised a Batson challenge, as relevant here, to the People's use of peremptory strikes on two prospective jurors—C.C. and K.C. C.C., who was a member {**42 NY3d at 713} of the first voir dire panel, was an unmarried Black man with no children who rented his home. When the court inquired of the panel if they knew anyone who had been the victim of a crime, C.C. responded by relating an event 15 years prior in which his cousin was arrested by police for marijuana possession at a family gathering. C.C. recounted that police \"came to the house. They just arrested [my cousin] and took him out and took the other cousins. I had two or three cousins in the house at the time. So they took all three of them and actually, my aunt, which is their mother, with them to the precinct. So they just raided the house and took them all out.\" Notably, when asked whether \"they were all arrested in that incident,\" C.C. answered, \"Yeah.\" C.C. gave assurances that he could be fair notwithstanding this incident but, later, when the People inquired whether he harbored any negative feelings about the police as a result of this incident, C.C. responded, \"Well, yeah, the way—just the fact that they took everybody. I didn't know that they had to take everybody. But that was it.\" Defendant challenged the People's strike of C.C. on the ground that it was an attempt to improperly exclude Black jurors. The court found that defendant had made a prima facie showing that the People sought to exclude C.C. on the basis of race and asked them to provide a nondiscriminatory reason for the use of the strike. The People responded that C.C. \"had cousins who had been arrested . . . had other friends that had been involved in multiple arrests . . . that he rents, and he has no children . . . [and] is not married.\" Defendant countered that \"there were jurors that are on this panel that are not African American who meet every one of those criteria that was just annunciated.\" Supreme Court found that the reasons proffered by the People for their strike of C.C. were not pretextual. K.C., a Black woman, was another prospective juror who was interviewed during the third round of jury selection. K.C. answered affirmatively when the court asked if any of the jurors worked in law enforcement and explained that she worked for the Department of Probation in Family Court. Specifically, K.C. stated that her job entailed interviewing juveniles who had been charged with a crime to determine if they should receive \"intake diversion, which is, like, a short-term probation or if they go to see the judge.\" The People struck K.C. from the panel with a peremptory strike. {**42 NY3d at 714} Defendant challenged the use of this peremptory strike on the ground that the People were improperly excluding K.C. based on race. The court found that defendant made a prima facie showing of discrimination and required the People to give a race-neutral explanation for their strike. In response, the People noted that K.C. \"works for the Department of Probation in the family court which is obviously within the legal field. And on top of it, she works for probation with juveniles\" and that, because of her job, \"sympathy might come into play.\" Defendant countered that K.C. had made clear that \"[s]he wouldn't allow sympathy to interfere in her deliberations\" and that \"[t]here have been other people with law enforcement backgrounds that have not been challenged by the Prosecution.\" Supreme Court found that the reasons proffered by the prosecution were non-pretextual and denied defendant's Batson challenge. [*3] A jury ultimately convicted defendant of second-degree robbery and second-degree criminal trespass. The Appellate Division affirmed, holding that defendant had \"failed to satisfy his burden of demonstrating, under the third prong of the Batson test, that the facially race-neutral explanation given by the prosecutor was a pretext for racial discrimination\" (203 AD3d 965, 966 [2d Dept 2022]). A Judge of this Court granted defendant leave to appeal (38 NY3d 1191 [2022]) and we now affirm. II. The legislature has long afforded parties to a criminal trial a statutory right to exercise a certain number of peremptory strikes, which are \"objection[s] to a prospective juror for which no reason need be assigned\" (CPL 270.25 [1]). Unlike a strike for cause, a party exercising a peremptory strike need not give a specific reason why they believe a juror cannot be impartial ( see People v Allen , 86 NY2d 101, 108-109 [1995]). Nonetheless, equal justice under the law requires that a criminal trial be devoid of racial discrimination in jury selection, and the Batson process endeavors to ensure that such discrimination does not infect the selection process ( see Batson , 476 US at 91). A Batson challenge requires a three-step analysis to determine whether a peremptory strike was used for the purpose of improper discrimination. At step one, the moving party must make a prima facie showing that the opposing party has exercised a peremptory strike to remove a potential juror on {**42 NY3d at 715} the basis of race ( see 476 US at 96). At step two, the burden shifts to the nonmoving party to come forward with a nondiscriminatory reason for each of the challenged strikes ( see People v James , 99 NY2d 264, 270 [2002]). Finally, at step three, once race-neutral reasons for the strike are provided, \"the inference of discrimination is overcome\" and the ultimate burden shifts back to the moving party to \"persuad[e] the court that the reasons are merely a pretext for intentional discrimination\" ( People v Smocum , 99 NY2d 418, 422 [2003]; see People v Hecker , 15 NY3d 625 , 634 [2010]). A trial court's determination at step three of the Batson analysis as to whether use of a peremptory strike is pretextual is accorded \"great deference\" on appeal ( Hecker , 15 NY3d at 656 [internal quotation marks omitted]). \"A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes\" ( Davis v Ayala , 576 US 257, 273-274 [2015]). Even where reasonable minds might differ as to whether a proffered justification is pretextual, the trial court's finding should be affirmed so long as there exists record support for it ( see People v Hernandez , 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]). Only where a trial court's decision as to pretext finds no support in the record may that decision be overturned on the cold record of appeal ( see People v Malloy , 33 NY3d 1078 , 1079 [2019]; Hecker , 15 NY3d at 657). The People's asserted reason for striking C.C. was that \"he had cousins who had been arrested . . . had other friends that had been involved in multiple arrests . . . that he rents, and he has no children . . . [and] is not married.\" Initially, we have characterized \"family involvement with police officers\" as a \"clearly nonpretextual\" reason for exercising a peremptory challenge ( Smocum , 99 NY2d at 420, 423). Moreover, here, the record demonstrates that C.C. felt strongly about the prior incident in which his cousin and family members had been arrested. Indeed, C.C. first mentioned the arrest in response to the court's inquiry as to whether any of the potential jurors knew anyone who had been a victim of a crime, not in response to an inquiry about whether jurors knew anyone who had been arrested. Further, C.C. stated that police \"raided the house\" and \"barged in\" prior to arresting his cousin and detaining other family members, suggesting that he harbored strong feelings about the methods used by law enforcement. Finally, C.C. responded in the affirmative when pressed by the People as to {**42 NY3d at 716} whether this incident caused him to have negative feelings towards police. [1] Any one of these responses would constitute record support for the trial court's pretext determination. Overall, C.C.'s responses gave rise to reasonable inferences that: (1) he viewed the arrest of his cousin for marijuana possession as a crime against his cousin; (2) he viewed the arrest of his cousin as a \"raid\" by police; and (3) his negative feelings towards police could affect his view of police witnesses in the case, regardless of any contradictory assurances he might have given. These inferences are patently reasonable and the trial court's determination that the nondiscriminatory reasons offered by the People in support of their peremptory strike of C.C. were credible and non-pretextual finds ample support in the record ( see Miller-El v Cockrell , 537 US 322, 338-339 [2003]; see also Smocum , 99 NY2d at 420-423). While it is true that unequal application of even facially neutral reasons for a strike can support a finding of pretext, that is but one factor for a court to consider and does not demonstrate discriminatory intent in and of itself, especially where the circumstances surrounding the challenged juror are distinguishable ( see Flowers v Mississippi , 588 US 284, 301-302 [2019]). Here, although there were other prospective jurors whose family members had also [*4] been arrested, the record does not indicate that those jurors shared C.C.'s feelings about the police or felt as strongly as he did about their respective incidents. None of those other jurors made comments indicating that they felt the arrest in question was wrong, or that they had lingering negative feelings about it. Similarly, although the dissent is correct that disparate questioning \" 'can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race' while 'declin[ing] to seek what they do not want to find about white prospective jurors' \" (dissenting op at 733, quoting Flowers , 588 US at 310), this observation lends more towards a condemnation of the Batson process itself than it does the trial court's decision in this case. After all, Batson requires simply that the People provide a credible non-pretextual reason for striking a particular juror; it does not require a justification for why other jurors were not stricken, and the Supreme Court has never endorsed such an analysis. Moreover, the prosecutor here did question other jurors who related negative experiences with police. For instance K.L. revealed during voir dire {**42 NY3d at 717} that he had a \"bad experience[ ]\" with the police approximately 10 years earlier when they detained his mother while verifying that she had a vendor's license for her food truck. The prosecutor questioned K.L. about his lingering negative feelings toward police officers because of this encounter and, ultimately, challenged K.L. for cause. [FN1] Further, the People were not required to credit C.C.'s statement that his feelings regarding his cousin's arrest would not influence his ability to be fair and impartial if his other answers showed an inability to live up to that promise ( see Hernandez , 75 NY2d at 356). The dissent's emphasis on C.C.'s self-proclaimed impartiality seems to ignore the purpose of peremptory challenges, which exist for precisely this kind of situation. Indeed, had C.C. answered the other way—that he would not be able to be fair and impartial—the People would have had a legitimate basis to challenge C.C. for cause ( see CPL 270.20 [1]). On this record, \"we cannot say as a matter of law that the [People's] proffered reason[s] [were] 'pretext for racial discrimination' \" ( Malloy , 33 NY3d at 1079, quoting Hernandez v New York , 500 US 352, 363 [1991]). In so concluding, we do not supply our own non-pretextual reasons to justify the People's peremptory strike. We merely review the record before us—as is our obligation—and find ample support for the trial court's undisturbed factual finding that the People's treatment of C.C., to the extent it differed from that of other jurors who had relatives arrested, was not racially motivated ( see Hecker , 15 NY3d at 656; People v Vandover , 20 NY3d 235 , 239 [2012]). [FN2] Unlike the dissent, we cannot engage in de novo fact-finding. {**42 NY3d at 718} Finally, the only Batson issue before us on this appeal is whether the record supports the trial court's determination at step three that the People's stated justifications for striking C.C. and K.C. were non-pretextual. [FN3] We note, however, that the trial court did articulate the wrong test at step one of defendant's Batson challenge relating to C.C., stating that the defendant had met his burden of showing that the People were excluding jurors solely on the [*5] basis of race. However, the dissent's attempt to arrogate this misstatement into reversible error—on an issue that was neither objected to below nor raised by defendant on appeal—is misplaced. The parties agree that the trial court properly concluded that defendant satisfied step one of the Batson analysis. There is no evidence that the court's misstatement at step one infected the court's step three analysis. The court applied the correct standard at step three in determining that the People's proffered reason was not pretextual, finding no \"basis for discrimination\" in the way the People exercised their strikes and that it \"believed the reasons given for these jurors given peremptory challenges were not pretextual and were the genuine reasons why [the prosecutor] challenged these jurors.\" The court's function at step three is distinct from its role at step one and, the dissent's transference theory notwithstanding, the trial court here did not reject defendant's Batson challenge on the ground that defendant had failed to demonstrate that racial discrimination was the sole basis for the strikes. Given the court applied the correct standard at step three, any mischaracterization of the standard at step one is not determinative. As for prospective juror K.C., the People offered a race-neutral reason for their use of a peremptory strike, specifically that \"she works for [P]robation with juveniles.\" The People expressed concern that K.C.'s job duties would cause her to be inappropriately sympathetic to defendant. K.C.'s job involved determining whether juvenile offenders would be entitled to intake diversion, or face prosecution, and she was previously employed as a caseworker. We have previously recognized that a party may permissibly strike a juror \"who works in a certain field . . . because that party believes—for reasons unrelated to {**42 NY3d at 719} the facts of the case—that such individual may have a more sympathetic attitude or view toward the opposing party\" ( Hecker , 15 NY3d at 664, citing People v Wilson , 43 AD3d 1409 , 1411 [4th Dept 2007] [permissible for the People to challenge a social worker on the basis they may be predisposed to sympathy towards defendants], lv denied 9 NY3d 994 [2007]; see also People v Hardy , 61 AD3d 616 , 616 [1st Dept 2009] [use of a peremptory strike against a juror who was an aspiring social worker], lv denied 13 NY3d 744 [2009]; People v Wint , 237 AD2d 195, 197 [1st Dept 1997] [use of peremptory strikes against psychiatric worker and social worker], lv denied 89 NY2d 1103 [1997]; People v Mancini , 219 AD2d 456, 457-458 [1st Dept 1995] [use of a peremptory strike against a teacher], lv denied 86 NY2d 844 [1995]). Here, we cannot say that there is no record support for the trial court's finding that the reason offered by the People was not pretextual and as such there is no basis for reversal on these grounds ( see Hecker , 15 NY3d at 663-664). [FN4] III. [2] Finally, the courts below did not err in holding that the showup identification procedures used immediately after defendant's arrest were not unduly suggestive. Showups are \"generally suspect and disfavored\" ( People v Duuvon , 77 NY2d 541, 543 [1991]). Nonetheless, \"at-the-crime-scene civilian showup identifications are not presumptively infirm\" ( id. ) and are permissible \"if exigent circumstances require immediate identification, or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately\" ( People v Riley , 70 NY2d 523, 529 [1987] [citation omitted]; see People v Johnson , 81 NY2d 828, 831 [1993]; People v Gilford , 16 NY3d 864 , 868 [2011]). {**42 NY3d at 720} Although this Court has stated that a showup procedure in which a suspect is handcuffed and in the presence of police is \"suggestive and not preferred\" and \"presses judicial tolerance to its limits\" ( People v Duuvon , 77 NY2d 541, 545 [1991]), we have concluded that such a showup is \"reasonable under the circumstances\" when it is conducted in close geographic and temporal proximity to the crime ( People v Brisco , 99 NY2d 596, 597 [2003]). When a showup is done as part of \"one unbroken chain of events—crime, escape, pursuit, apprehension and identifications\"—such a procedure is acceptable ( Duuvon , 77 NY2d at 544-545; see also People v Ortiz , 90 NY2d 533, 537 [1997] [\"Proof that the showup was conducted in close geographic and temporal proximity to the crime will [*6] generally satisfy . . . the People's burden\" of showing that a showup procedure was not unduly suggestive]). As we have recognized, \" 'prompt showup identifications by witnesses following a defendant's arrest at or near the crime scene have been generally allowed' \" ( People v Johnson , 81 NY2d 828, 831 [1993], quoting Duuvon , 77 NY2d at 544; accord People v Howard , 22 NY3d 388 , 402 [2013]). Moreover, \"[w]hether a crime scene showup is unduly suggestive is a mixed question of law and fact. Thus, if record evidence supports the determination below, this Court's review is at an end\" ( Brisco , 99 NY2d at 597; see People v Romero , 27 NY3d 981 , 982 [2016]; Howard , 22 NY3d at 403; Gilford , 16 NY3d at 868; People v Clark , 85 NY2d 886, 889 [1995]). Here, as the trial court found, the showups were conducted within a few blocks of the crime scene and took place immediately after the robbery and defendant's apprehension. That defendant was handcuffed and in the presence of police officers is not unusual for a crime-scene showup justified by exigency, particularly where a weapon may have been used in the crime ( see e.g. Howard , 22 NY3d at 403; Gilford , 16 NY3d at 867). \"[G]iven that the police were looking for armed robbers, they logically would have wanted to move as quickly as possible to find out whether they had apprehended the . . . perpetrator[ ]\" and a \"showup is not improper merely because the police already have probable cause to detain a suspect\" ( Howard , 22 NY3d at 403). That the police may have had cause to arrest defendant for trespass, as the dissent contends, does little to mitigate the concern that, if he was not identified by the victims as one of the robbers, the perpetrators of that crime might have remained at large in the community. Moreover, there are indicia of reasonableness in the procedures used; defendant {**42 NY3d at 721} was not shown handcuffed in the back of a police car ( compare Duuvon , 77 NY2d at 545); he was not shown to the witnesses with any evidence of the stolen property ( compare Riley , 70 NY2d at 530); and the showups were conducted separately—reducing any risk of the witnesses inadvertently influencing each other ( compare People v Adams , 53 NY2d 241, 249 [1981]). To the extent defendant argues that statements overheard by Guzman in the back of the police car were unduly suggestive, certainly, such conduct is not to be encouraged. Nonetheless, it is pertinent that the police had already shown Guzman two other individuals—who they presumably also suspected could have been the robbers and Guzman declined to identify as the perpetrators. In any event, even if \"it is possible to disagree with the lower courts here, it simply cannot be said that no record support exists for their unanimous determination that [these] showup[s] [were] reasonable and not unduly suggestive\" ( Howard , 22 NY3d at 403). \"As a result, the determination of the hearing court in this case, undisturbed by the Appellate Division and supported by evidence in the record, is beyond our further review\" ( Gilford , 16 NY3d at 868). Accordingly, the order of the Appellate Division should be affirmed. Chief Judge Wilson (dissenting). Mr. Wright was convicted, upon a jury trial, of robbing a Taco Bell. He may have done so, but that is not the question before our Court. The question is whether his conviction was obtained consistent with two rules fundamental to the procedural fairness of trials: the police should not use highly suggestive procedures to obtain eyewitness identifications, and prosecutors should not consider the race of prospective jurors when exercising [*7] peremptory strikes. I conclude it was not, and for that reason I would reverse and vacate his conviction so that he can be retried consistent with the requirements of due process. I. I turn first to the suggestiveness of the identification procedure. Ms. Ramsahoye, the supervisor on duty, testified that the person who directed her to hand over the registers was \"wearing a red hoodie, black jacket.\" When asked, \"Could you see any part of his face,\" she answered: \"No. He had something over his nose.\" The other witness, Mr. Guzman, testified that {**42 NY3d at 722} he was asleep when the robbers entered the Taco Bell, was awakened by the noise, and before the man took Ms. Ramsahoye into the office he observed only the man's forehead and eyes, because the rest was covered by the hoodie and a bandana. He identified the man as wearing a red hoodie, with no mention of a jacket, black or otherwise. The record is clear: neither witness saw the face of either robber. Officers Blake and Schuman were in the vicinity of the Taco Bell and responded to a radio call for a robbery in progress, describing the perpetrator as \"a male Black, black jacket,\" with no mention of a red hoodie. When they stopped in front of the Taco Bell, they saw a man wearing a black jacket and red hoodie walking toward a Lincoln Town Car who \"took off running\" when he saw the officers. They saw him enter the back yard of a house, and although they tried to follow him, they lost sight of him twice, first for \"less than ten minute[s],\" and then a second time for less than a minute. Officer Blake then apprehended Mr. Wright in the living room of a house he had no permission to enter, and Officer Blake placed him under arrest. Approximately 5 to 10 minutes later, officers arrived at the scene with Ms. Ramsahoye and Mr. Guzman for the showup identification process. Ms. Ramsahoye testified that officers responding at the Taco Bell \"asked [her] to go and identify someone.\" After arriving at the house, one of the officers told her that they \"would bring someone out\" of another police car. Although she did not recall exactly how many officers were present, Ms. Ramsahoye testified that there were \"quite a few\" and that there were at least four police cars. While sitting in the patrol car, from approximately 30 feet away, Ms. Ramsahoye saw \"police br[ing] the suspect\" out from another officer's car with his hands behind his back. He was wearing a red hoodie but not a jacket. She did not recognize his face but identified the man as the robber due to \"the clothes that he was wearing, the height and his body weight.\" When asked at the suppression hearing what else Wright was wearing, Ms. Ramsahoye testified, \"I don't remember—that's all I remember, just wearing a red hoodie. Of course his jeans or whatnot.\" At the suppression hearing, Mr. Wright was present, and Ms. Ramsahoye was asked if she recognized him. She said that she was not sure who he was. At trial, however, Ms. Ramashoye first testified that when the police brought her to see if she could identify the person they were bringing out of a police car, in handcuffs, she {**42 NY3d at 723} recognized that person as the person who had robbed the store, and twice described him, at the time the police brought him out, as wearing a red hoodie and a black jacket when she identified him. Next, she testified that the man she identified when the police brought him out was the defendant. Then, she testified that Mr. Wright was someone with whom she had worked approximately seven years before the robbery, but had not recognized him as her former coworker as the robbery occurred, when she made an identification shortly thereafter, or during the 45 minutes she observed him during the suppression hearing (at which time she could not even identify him as the man who robbed the store). Turning back to the time just after the robbery, other officers had been driving around the neighborhood with Mr. Guzman in search of the robbers. After \"circling the area\" for 6 to 10 minutes, Mr. Guzman heard the officers receive \"a call and said they stopped a guy and they think it is the guy\" and \"went to the location\" relayed over the radio, the house where Mr. Wright had been apprehended. At the suppression hearing, Mr. Guzman clarified that he overheard the officers receive a call on the police radio, and that one of the officers escorting him stated \"I think it is the guy.\" At trial, Mr. Guzman reaffirmed that while in the police car he heard, over the police radio, someone say that the police had \"stopped someone that might be the person,\" and that one of the officers in the car transporting Mr. Guzman said, \"I think we got the guy.\" When they arrived at the location, Mr. Guzman remembered seeing \"a lot of police officers,\" and he saw \"a guy getting arrested outside of a house, escorted outside of a house\" handcuffed and in police custody. While seated in a patrol car, from about 20 feet away, Mr. Guzman identified the person under arrest as the robber wearing the red hoodie. However, at trial, Mr. Guzman was not asked whether he saw the robber anywhere in the courtroom, or to make an in-court identification of the defendant. Mr. Wright moved to suppress both identifications as unduly suggestive. Supreme Court denied his motion, holding that the identifications were not \"overly suggestive and improper\" because the witnesses were transported one block to identify Mr. Wright 10 to 20 minutes after the robbery, a \"very short spatial and temporal time between [*8] the incident and arrest.\" The Appellate Division affirmed without mentioning the challenge to the identifications by Ms. Ramsahoye and Mr. Guzman as unduly suggestive (203 AD3d 965 [2d Dept 2022]). {**42 NY3d at 724} Noting that a \"confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial,\" the United States Supreme Court, in the Wade-Stovall-Gilbert trio of cases, established an exclusionary rule barring such identifications when made in the absence of counsel ( United States v Wade , 388 US 218, 228 [1967]). Although lineups and photo arrays, even when constructed with the best of intentions, may still create some improper suggestiveness, \"[i]t is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by police\" than \"the presentation to the witness of the suspect alone handcuffed to police officers\" ( id. at 234). \"It is firmly established in our jurisprudence that unduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused\" ( People v Chipp , 75 NY2d 327, 335 [1990]). The use of impermissibly suggestive identification procedures violates a defendant's right to due process of law ( Neil v Biggers , 409 US 188, 196 [1972]). As we have stated, \"erroneously induced identification evidence via showups . . . must be vigilantly guarded against because this kind of error drives right into the heart of the adjudicative guilt or innocence process affecting the person accused and identified\" ( People v Riley , 70 NY2d 523, 531 [1987]). Nevertheless, we have not held that any suggestiveness attendant to a showup requires the suppression of identification evidence where the police have used a showup. Instead, we have \"emphasized . . . that the proof 'must be scrutinized very carefully for [evidence of] unacceptable suggestiveness and unreliability' \" ( People v Ortiz , 90 NY2d 533, 537 [1997], quoting People v Duuvon , 77 NY2d 541, 543 [1991]), and have set out the following procedure to determine whether identification evidence may be admitted despite the use of a showup: \"While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, the burden is on the People first to produce evidence validating the admission of such evidence. Initially, the People must demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal {**42 NY3d at 725} proximity to the crime will generally satisfy this element of the People's burden. This does not end the inquiry, however. The People also have the burden of producing some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive. As we noted in People v Chipp , 'the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure' \" ( id. [citations omitted]). Here, the showups failed both elements of the People's burden, especially with respect to suggestiveness. As to reasonableness under the circumstances, although generally geographic and temporal proximity will establish reasonableness, that is so because in the ordinary case there is an important policy at play that favors a quick determination of whether there is a basis to arrest someone. In this case, however, as Supreme Court itself acknowledged, because Mr. Wright was trespassing in a home whose owner informed the police Mr. Wright had no reason to be there, the police could have (and did) arrest him on that basis, take him to the precinct, and arrange for witnesses to identify Mr. Wright using a far less suggestive procedure, such as a lineup. [FN1] [*9] As to the second element of the People's burden, production of evidence demonstrating that the showup was not unduly suggestive, Supreme Court conflated the two different examinations, responding to Mr. Wright's contention that \"the showups were unnecessary\" because there was \"probable cause without {**42 NY3d at 726} the complainants\" by pointing out the \"very short spatial and temporal time [sic] between the incident and arrest.\" \"We have held that '[s]howup identifications, by their nature [are] suggestive [and] are strongly disfavored' . . . . By contrast corporeal lineups, properly conducted, generally provide a reliable pretrial identification procedure\" ( Chipp , 75 NY2d at 335, quoting Riley , 70 NY2d at 529). Here, the showups were particularly suggestive because neither witness saw the robber's face and because the showups could easily have been replaced with a less suggestive pretrial identification procedure. As a further matter, the evidence at the suppression hearing demonstrated the extreme suggestiveness of the procedures used here. Both witnesses observed Mr. Wright as he was handcuffed, surrounded by \"a lot of police officers\" and at least four police cars. On his way to identify Mr. Wright, Mr. Guzman heard a transmission over the police radio that the police had apprehended someone they believed was the robber, and an officer in the car transporting Mr. Guzman said \"I think we got the guy\"—both when Mr. Guzman and the officers were merely three or four blocks away from the scene. Functionally, the suggestiveness in this scenario is no different than a police precinct showup, which we have held inadmissible absent exigent circumstances or proof of an independent source ( Riley , 70 NY2d at 529-532). As to Ms. Ramsahoye, although she did not hear the police statements that Mr. Guzman did, the remaining circumstances were identical. In addition, her sworn testimony at the suppression hearing—that, after observing Mr. Wright there for 45 minutes, she could not say that he was the robber—is strong evidence that the inherent suggestiveness of the showup resulted in her identification of Mr. Wright as the robber, an identification she admittedly did not make based on his facial appearance, but only on his wearing a red hoodie and his general build, which in itself was not distinctive (five feet, six inches, to five feet, eight inches, 170 to 180 pounds). The combined effect of the suggestive circumstances of this showup procedure pushed \"judicial tolerance\" beyond \"its limits\" ( Duuvon , 77 NY2d at 545). Absolutely no effort was made by the police to provide for reliable identifications ( see Ortiz , 90 NY2d at 537). Particularly because the faces of both of the robbers were covered, we should be loath to sanction use {**42 NY3d at 727} of a highly disfavored identification procedure in a situation where a superior procedure was readily available. II. I also conclude that the People impermissibly employed a peremptory strike to exclude potential juror C.C. because of that panelist's race, in violation of Batson v Kentucky (476 US 79 [1986]) and our related case law. When a party raises a Batson challenge, the trial court engages in a familiar three-step process. In step one, the moving party bears the burden of establishing a prima facie case of purposeful discrimination against a cognizable group in the exercise of peremptory strikes ( id. at 96; People v Smocum , 99 NY2d 418, 421 [2003]). Once the court finds a prima facie case of unlawful discrimination has been established, the inquiry moves on to step two, in which the nonmoving party must provide a race-neutral reason for excluding each panelist challenged ( Batson , 476 US at 94-98; Smocum , 99 NY2d at 422 [\"(a)t this second stage the reasons need be only facially permissible\"]; People v Allen , 86 NY2d 101, 109 [1995]; see also Hernandez v New York , 500 US 352 [1991]). At step three, the burden shifts back to the moving party to \"persuad[e] the court that [the] reasons are merely a pretext for intentional discrimination\" ( People v Hecker , 15 NY3d 625 , 656 [2010]). In step three, the trial court \"make[s] an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented,\" evaluating whether the moving party's proffered reasons are \"merely a pretext for intentional discrimination\" ( Smocum , 99 NY2d at 422). A. The trial court's Batson analysis was infected by an erroneous statement of law. The court repeatedly articulated Mr. Wright's burden at step one as establishing \"a prima facie case that your adversary has excluded jurors solely on account of their [race]\" (emphasis added). That was not a transcription error or errant misspeak: the court repeated its erroneous statement of the law by stating, \"I'm asking you what facts and inferences establish a prima [*10] facie case that the Prosecutor has excluded jurors solely on the account of their [race]\"; and \"your position is that you've established a prima facie case that these jurors were excluded solely because they were African American; is that correct?\" That misstates the law. The standard at {**42 NY3d at 728} step one, two or three is the same in this regard: if race (or any other invidious classification) forms any part of a reason for use of a peremptory strike, Batson requires that the strike be rejected ( People v Luciano , 10 NY3d 499 , 505 [2008] [\"The purpose of the Batson rule is to eliminate discrimination, not minimize it\" (citation and quotation marks omitted)]; Smith v United States , 966 A2d 367, 369 [DC 2009, as amended on reh May 14, 2009] [\"race is an impermissible factor, even if a minor one, in exercising peremptory strikes\"], quoting Tursio v United States , 634 A2d 1205, 1212 n 7 [DC 1993]). However, applying that incorrect standard, the court found that Mr. Wright had made out a prima facie case. That is, at step one, the court found that Mr. Wright had established a prima facie case that certain of the People's peremptory strikes (as to three prospective jurors, C.C., T.C. and A.S.) had been made solely because of the panelists' race. Given that finding, the People's later nonpretextual reasons at most established that the People considered those factors, along with race, as the basis to exclude certain jurors. That, nevertheless, would run afoul of Batson and render the peremptory strikes impermissible. [FN2] Looking at it from another angle, the court's error in concluding that a peremptory strike is unlawful only if race (or another protected classification) is the sole basis for the strike imposed a legally incorrect burden on Mr. Wright at step three, concluding that he failed to prove that the People's reasons were pretextual because he had not demonstrated that racial discrimination was the sole basis for the strikes. That error of law requires automatic reversal and a new trial ( Hecker , 15 NY3d at 661). B. Even setting aside that error, Mr. Wright met his burden to show that the People's peremptory strike of prospective juror {**42 NY3d at 729} C.C. violated Batson . In the first round of voir dire, 16 potential jurors were questioned, two of whom were African American: C.C. and A.S. During questioning, the court asked: \"Has anyone on the jury or any close friend or associate or family member been the victim of a crime or witnessed a crime or in any way participated somehow in a criminal proceeding ? Does anyone know a person who has been the victim of a crime or yourself been the victim of a crime or witness to a crime? Any type of crimes, various crimes. . . . Raise your hand if you've been the victim of a crime. Almost everybody\" (emphasis added). After several potential jurors answered, C.C. answered as follows: \"[C.C.]: Yeah, I had a cousin. This was, like, maybe 15 years ago. He got arrested in his home while I was there because he had some weed on him. And they came to the house. They just arrested him and took him out and took the other cousins. I had two or three cousins in the house at the time. So they took all three of them actually, my aunt, which is their mother, with them to the precinct. So they just raided the house and took them all out. That's the only thing I got. \"THE COURT: That was going to be my next topic or subject matter. Anyway, we'll discuss it. Now would that affect your ability to be fair and impartial in this matter? [*11] \"[C.C.]: No.\" Five additional, non-African American panelists disclosed having family members or close friends who had been arrested; the prosecutor did not challenge or question any of them. Instead, the prosecutor questioned only C.C., at length, about his feelings on his relative's incident: \"[PROSECUTOR]: Okay. How do you feel about how everybody was treated in that situation by the Police Department? \"[C.C.]: Well, I mean, my cousin did the wrong thing and had what he had and bringing it into the house. And that was a bad thing right here. And the fact that they had to come in—one thing I didn't like {**42 NY3d at 730} was when they barged in. I'm not sure if they actually knocked or anything like that, but I know they came in, just grabbed my cousin, found that he had stuff on him, cuffed him and brought everybody out of the house. \"[PROSECUTOR]: So you have a negative feeling about how the police got there and their approach in going inside? \"[C.C.]: Well, yeah, the way—just the fact they took everybody. I didn't know that they had to take everybody. But that was it.\" The prosecutor then asked about C.C.'s present feelings and how they might bear on his ability to be impartial here: \"[PROSECUTOR]: . . . There are police officers that are going to take the stand in this case. Do you have any negative feelings from that incident? . . . [D]o you have any negative feelings from that incident with your family that may make it so that when those police officers testify, you may have a prejudgment of them before they even say anything? \"[C.C.]: Not at all. \"[PROSECUTOR]: Okay. So you'll give the police officers a fair shake. . . . [Y]ou'll give them a fair shake, and you'll listen to what they have to say before making any conclusions about them? \"[C.C.] Yes, I will.\" Both African American panelists were removed during the first round of voir dire: A.S. was excused for cause; C.C. was peremptorily struck by the prosecution. During the second round, the prosecutor exercised a peremptory challenge against T.C., another African American potential juror, and Mr. Wright's counsel raised a Batson objection as to both T.C. and C.C. After the court found that Mr. Wright had made a prima facie case of discrimination, the Batson inquiry progressed: \"[PROSECUTOR]: . . . I exercised a peremptory challenge based on the fact that [C.C.] had cousins who had been arrested. And I have a note that he had other friends who had been involved in multiple arrests. That was one of the main reasons there. {**42 NY3d at 731} Also, that he rents, and he has no children. He is not married. Those were the reasons at the time for [C.C.]. \"[DEFENSE COUNSEL]: Judge, respectfully, there were jurors that are on this panel that are not African American who meet every one of those criteria that was just [e]nunciated. There are people who have been crime victims, people who rent. [*12] \"THE COURT: [C.C.] did explain that number [sic] of people arrested in the house that he was present concerning marijuana. I recall that. In his background. Okay. . . . \"I don't find any basis for discrimination in the way [the prosecutor] used these challenges. She has good reasons for the reasons she used these challenges, and she stated them on the record. . . . I find I believe the reasons given for these jurors given peremptory challenges were not pretextual and were the genuine reasons why [the prosecutor] challenged these jurors.\" i. The People gave three race-neutral reasons for striking C.C.: (1) C.C. had \"cousins who had been arrested\"; (2) C.C. \"had other friends that had been involved in multiple arrests\"; and (3) C.C. was an unmarried renter with no children. The record here demonstrates that those reasons were pretextual. As to the People's first reason, C.C. recounted an incident 15 years earlier in which his cousin who was arrested for possession of marijuana was taken to the police station along with all of the occupants of the house except C.C.'s grandmother. The prosecutor probed C.C. extensively about the incident, asking pointed questions such as how C.C. felt about \"how everybody was treated in that situation by the Police Department\" and whether he had \"a negative feeling about how the police got there and their approach in going inside.\" When asked directly about his present feelings, C.C. unequivocally stated twice that his feelings about his cousin's arrest would not influence his ability to be fair and impartial here. In contrast, at least five non-African American panelists had family members or close friends who had been arrested; none of them was stricken by the People. Some of those arrests were {**42 NY3d at 732} for far more serious crimes, more recent, and of more closely related relatives. The record established that as to those five prospective jurors: • One's younger brother served approximately four years in prison for third-degree robbery committed \"over 15 years ago\" and also had an uncle who had been \"incarcerated for drugs\"; • One had a cousin who served time in prison for tax evasion \"between three and five years\" ago; • One had a family member previously incarcerated for gun charges and another family member who was currently serving time for assault; • One had a cousin who was arrested trying to enter the country without proper legal status \"over 10 years ago\"; and • One had a close friend whose husband who was arrested for dealing drugs \"about two years ago\" as part of a \"drug raid\" in the Bronx. Like C.C., each of those panelists answered that their family members' experiences would not affect their ability to be fair in the case here. However, although C.C.'s relationship to someone on the wrong side of the law was far more attenuated in time and/or severity than the other potential jurors who were not African American, the prosecutor subjected only C.C. to extended questioning about his feelings on his relative's relatively minor incident and peremptorily struck only C.C. In the abstract, \"family involvement with police officers\" may be a nonpretextual reason for use of a peremptory strike, as the majority asserts ( see majority op at 715, quoting Smocum , 99 NY2d at 423). But in the context here, it is simply not credible to assert that the extended questioning of an African American juror whose cousin was arrested for marijuana possession 15 years ago was not pretextual when the prosecutor cared not a whit about jurors whose relatives and close friends were incarcerated for criminal possession of a weapon, assault, drug dealing and robbery—the crime at issue here. The distinguishing feature as to the disparate prosecutorial interest was that C.C. was African American, and the others with more recent and more severe \"family involvement with police officers\" [*13] were not. The majority's rationale means that if the People point to some issue that, in the abstract, might be a nondiscriminatory basis to strike a juror, they may wield it in a discriminatory way, singling out African Americans or members of other {**42 NY3d at 733} protected groups for peremptory strikes while ignoring those factors as to others. The majority's rationale is incompatible with the United States Supreme Court's recognition that disparate questioning \"can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race\" while \"declin[ing] to seek what they do not want to find about white prospective jurors\" ( Flowers v Mississippi , 588 US 284, 310 [2019]). The second reason given by the People for striking C.C.—that he had \"other friends that had been involved in multiple arrests\"—has no support in the record whatsoever. The People now acknowledge that the prosecutor's second reason was \"[c]learly . . . in error.\" It is noteworthy that, among the three reasons given by the prosecutor, the prosecutor singled out this reason as \"one of the main reasons\" for striking C.C. [FN3] The provision of a reason wholly devoid of support in the record suggests that the reason was pretextual ( see People v Coleman , 195 AD3d 1411 , 1413 [4th Dept 2021] [\"a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make\"]). The third reason offered by the prosecutor was that C.C. was an unmarried renter without children. That explanation likewise suggests pretext for two reasons. First, several other non-African American prospective jurors were renters, several were unmarried, and several were childless. Yet the People did not use a peremptory strike on any of those prospective jurors. \"If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination\" ( Miller-El v Dretke , 545 US 231, 241 [2005]). Second, those characteristics are irrelevant to the facts of this case, which was a commercial robbery that did not involve children, renters or spouses. Although not dispositive standing alone, \"[w]hether a proffered reason relates to the {**42 NY3d at 734} facts of a case or a prospective juror's qualifications is certainly a factor relevant to a court's determination of pretext\" ( Hecker , 15 NY3d at 664; see also Miller-El v Cockrell , 537 US 322, 339 [in the Batson context, \"(c)redibility can be measured by, among other factors . . . whether the proffered rationale has some basis in accepted trial strategy\"]; Batson , 476 US at 98 [\"The prosecutor . . . must articulate a neutral explanation related to the particular case to be tried\"]). Recently, the United States Supreme Court rejected justifications very much like those constituting the People's third reason proffered in this case. In Foster v Chatman , in holding that the prosecutors had violated Batson , the Court rejected proffered reasons because white jurors sharing the characteristics used to justify the peremptory strike of an African American juror were not stricken: \"[O]ther explanations given by the prosecution, while not explicitly contradicted by the record, are difficult to credit because the State willingly accepted white jurors with the same traits that supposedly rendered Garrett an unattractive juror. Lanier told the trial court that he struck Garrett because she was divorced. But he declined to strike three out of the four prospective white jurors who were also divorced. Additionally, Lanier claimed that he struck Garrett because she was too young, and the 'State was looking for older jurors that would not easily identify with the defendant.' Yet Garrett was 34, and the State declined to strike eight white prospective jurors under the age of 36. Two of those white jurors served on the jury; one of those two was only 21 years old\" (578 US 488, 505-506 [2016] [citations omitted]). [FN4] Here, because several non-African American jurors were ultimately empaneled even though they were renters, unmarried and/or childless, the claim that those characteristics were the bases to strike C.C. rests on no \"valid line of reasoning\" or intentional trial strategy ( c.f. Hecker , 15 NY3d at 663-665 [record {**42 NY3d at 735} supported trial court's finding that People's proffered reason was genuine when the People asserted that panelists' education and employment level informed their jury selection strategy and nearly all impaneled jurors met the People's education and employment criteria]). Because \"much of the reasoning provided by [the People] has no grounding in fact\" ( Foster , 578 US at 502), Mr. Wright met his burden to show that the People's stated reasons for striking C.C. were pretextual. ii. In Batson cases, our review is \"limited to the examination of Supreme Court's pretext determination in light of the reasons placed on the record by . . . counsel concerning her removal of [a prospective juror]. In doing so, we cannot engage in factfinding, but merely search the record for support for the trial court's ultimate pretext determination\" ( Hecker , 15 NY3d 625, 656-657 [2010] [emphasis added]; see also People v Bridgeforth , 28 NY3d 567 , 571 [2016] [\"(A)t step three, the trial court must determine, based on the arguments presented by the parties , whether the proffered reason for the peremptory strike was pretextual\" (emphasis added)]). It is therefore imperative that the trial court \"establish a meaningful record for a reviewing court to uphold its ruling\" ( Hecker , 15 NY3d at 657; see also People v Payne , 88 NY2d 172, 184 [1996] [\"the trial courts bear the judicial responsibility of ensuring that an adequate record is made and of reflecting the basis for their rulings \" (emphasis added)]; cf. Snyder v Louisiana , 552 US 472, 479 [2008] [appellate court could not presume the trial judge credited the prosecutor's assertion regarding a struck panelist's demeanor when the record did not show that the trial judge actually made a determination concerning his demeanor]). Here, the trial court failed to establish an adequate record of its pretext determination with respect to C.C., stating simply that the prosecutor's three proffered reasons were \"good reasons for . . . us[ing] these challenges . . . [which] she . . . stated on the record,\" elaborating only that C.C.'s cousin had been arrested for marijuana—nothing else. [FN5] For the reasons I discussed earlier, those rationales are not supported by the record. {**42 NY3d at 736} Instead of attempting to defend the reasons given by the prosecutor, as required by Hecker and Bridgeforth , the majority has scoured the record and come up with some reasons the prosecutor could have given, but didn't: \"the record demonstrates that C.C. felt strongly about the prior incident in which his cousin and other family members had been arrested\" and cites three pieces of evidence \"[a]ny one\" of which \"would constitute record support for the trial court's pretext determination\": (1) C.C. first mentioned the arrest in response to the court's inquiry about whether any jurors knew anyone who had been the victim of a crime; (2) C.C. stated that the police \" 'raided the house' and 'barged in' [when] arresting his cousin and detaining other family members\"; and (3) \"C.C. responded in the affirmative when pressed by the People as to whether this incident caused him to have negative feelings towards police\" (majority op at 715-716). The People did not give those as reasons for striking C.C., and the court likewise did not refer to any of them when concluding that the reasons given by the People were not pretextual. When providing their nonpretextual reasons for striking C.C., the People did not mention C.C.'s feelings toward the police, his use of the words \"raid\" or \"barge,\" or the fact that he was upset that others in his family had been taken to the police precinct. Not only has the majority invented reasons never given by the prosecutor or the court, but it has gone far afield of the actual record to do so. For example, contrary to the majority's \"reasonable inference\" that C.C. \"viewed the arrest of his cousin for marijuana possession as a crime against his cousin\" (majority op at 716), C.C. stated [*14] just the opposite: \"Well, I mean, my cousin did the wrong thing and had what he had and bringing it into the house. And that was a bad thing right here.\" When the majority offers its own nonpretextual reason that C.C. \"viewed the arrest of his cousin as a 'raid' by police\" (majority op at 716), the majority is making its own factual determination that \"raid\" meant something illegitimate, ignoring common parlance [FN6] and this own Court's opinions [FN7] {**42 NY3d at 737} describing legitimate police actions as \"raids.\" The record evidence suggests that the prosecutor did not share the majority's antipathy to the word \"raid\": a non-Black panelist said that her friend's husband had been arrested in a Bronx \"drug raid,\" yet the prosecutor did not challenge or even ask further questions of that panelist. Hecker does not permit an appellate court to search the record for facts that would support reasons not given by the People as a basis for striking a juror and conclude that those would have been sufficient had the People asserted them. Reasons not asserted by the People as a basis for a peremptory strike, even if supported in the record, are legally irrelevant under Batson , because a Batson inquiry does not attempt to determine whether a different prosecutor (or the majority of our Court) might have been able to come up with nonpretextual reasons to strike a juror, but whether this prosecutor actually struck the juror solely for nondiscriminatory reasons. That inquiry depends on what the prosecutor said, not on what the prosecutor might have said but didn't. By allowing an appellate court to arrive at its own nonpretextual reasons found somewhere in the record when the People did not assert those as the reasons they struck a juror who was a member of a protected classification, the majority has undermined the fundamental purpose of Batson . Indeed, even during a Batson hearing, when a prosecutor provided a new reason for a strike after defense counsel pointed out that the originally proffered reasons were factually untrue, the United States Supreme Court observed that \"[i]t would be difficult to credit the State's new explanation, which reeks of afterthought\" ( Miller-El , 545 US at 246). {**42 NY3d at 738} Batson rests on a subjective determination of a prosecutor's motive: Did race (or some other protected classification) form any part of the reason why the prosecutor struck a juror? If so, a new trial is warranted because as a matter of due process and equal protection, we will not allow such discrimination against prospective jurors or violations of a defendant's constitutional rights to be sanctioned by the court. III. A. The majority's struggle to interject its own state of mind into that of the prosecutor's illustrates why the Batson test itself is fraught with difficulty and should be abandoned in favor of an objective test. Because the Batson test \"leave[s] us with a subjective understanding of the concept of discriminatory intent in the peremptories context\" (Robin Charlow, Tolerating Deception and Discrimination after Batson , 50 Stan L Rev 9, 37 [1997]), it can provide cover for parties who intend to discriminate by allowing them to obscure their discriminatory intent behind plausible, facially neutral justifications ( see e.g. People v Bolling , 79 NY2d 317, 330 [1992, Bellacosa, J., concurring] [*15] [\"Unfortunately, the Batson procedural hurdles have become 'less obstacles to racial discrimination than they are road maps' to disguised discrimination\"], quoting Brian J. Serr & Mark Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of A Delicate Balance , 79 J Crim L & Criminology 1, 59 [1988]). Furthermore, because it focuses solely on the nonmoving party's subjective intent to discriminate, the Batson test is poorly calibrated to detect discrimination deriving from implicit bias, which is likely more common than intentional discrimination deriving from conscious racial animus. [FN8] {**42 NY3d at 739} Justice Marshall anticipated those concerns in his Batson concurrence: \"[W]hen a defendant can establish a prima facie case, trial courts face the difficult burden of assessing prosecutors' motives. Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons. How is the court to treat a prosecutor's statement that he struck a juror because the juror had a son about the same age as defendant . . . ? If such easily generated explanations are sufficient to discharge the prosecutor's obligation to justify his strikes on nonracial grounds, then the protection erected by the Court today may be illusory. \"Nor is outright prevarication by prosecutors the only danger here. '[I]t is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.' A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is 'sullen,' or 'distant,' a characterization that would not have come to his mind if a white juror has acted identically. A judge's own conscious or unconscious racism may lead him to accept such an explanation as well supported\" ( Batson v Kentucky , 476 US 79, 105-106 [1986, Marshall, J., concurring] [citations omitted]). Six years later, in People v Bolling , Judge Bellacosa noted that \"[t]ime and experience with many cases have proven the prescience of Justice Marshall's observations\" with respect to the shortcomings of the Batson remedy (79 NY2d at 327 [Bellacosa, J., concurring]), and proclaimed \"[i]t is time for the Legislature to come to terms with the undisputed fact that 'peremptory challenges constitute a jury selection practice that permits \"those to discriminate who are of a mind to discriminate,\" ' and that the Batson effort has failed to fulfill its stated goal of eradicating invidious discrimination from the jury selection process\" ( id. at 331 [citations omitted]). {**42 NY3d at 740} What was evident to some shortly after Batson has been borne out by research over the past four decades: \"Even in extreme instances of bias—such as the exclusion of every Black member of the venire . . . it would be relatively easy to generate multiple, race-neutral justifications\" (Samuel R. Sommers & Michael I. Norton, Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure , 31 Law Hum Behav 261, 269 [2007]; see also Jeffrey Bellin & Junichi P. Semitsu, Widening Batson's Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney , 96 Cornell L Rev 1075, 1106 [2011] [\"Batson, as currently applied, is unable to prevent the use of race in jury selection because its dictates are so easily avoided\"]). [*16] B. In the past several years, other states have addressed Batson's inherent shortcomings by adopting an objective standard, which reduces the influence of racial bias in both its conscious and unconscious forms. In 2018, the State of Washington adopted, in the form of General Rule 37, an objective standard for determining whether a peremptory challenge should be disallowed. Under that rule, \"[i]f the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge\" (Wash Ct Gen Rules 37 [e]). Following Washington's lead, in 2020, the California legislature adopted section 231.7 to the California Code of Civil Procedure, which provides that the \"court shall consider only the reasons actually given\" and shall disallow use of a peremptory strike if \"the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge\" (Cal Civ Pro Code § 231.7 [d] [1]). [FN9] {**42 NY3d at 741} Shortly thereafter, the New Jersey Supreme Court observed that \"implicit bias is no less real and no less problematic than intentional bias\" and that \"[t]he effects of both can be the same: a jury selection process that is tainted by discrimination\" ( State v Andujar , 254 A3d 606, 623 [NJ 2021]). Holding that the use of peremptory challenges driven by implicit bias violated the New Jersey State Constitution, the court modified step three of New Jersey's Batson test to eliminate the requirement that the nonmoving party intended to discriminate, to reduce the use of peremptory challenges driven by implicit bias ( id. at 622-623). Two years ago, the New York State Justice Task Force (the Task Force) recommended amending Criminal Procedure Law § 270.25 by adopting a \"reasonable person standard\" ( see Recommendations Regarding Reforms to Jury Selection in New York at 15, New York State Justice Task Force [Aug. 2022], https://www.nyjusticetaskforce.org/pdfs/Report-on-Recommendations-Regarding-Reforms-to-Jury-Selection-in-New-York.pdf). [FN10] Under that standard, at Batson step three, the trial court evaluates the nonmoving party's proffered reason by asking \"[w]hether, in the view of a reasonable person, the race of a juror was a factor in the exercise of the peremptory challenge. If the court determines that the answer is yes, then the peremptory challenge shall be denied\" ( id .). Although the Task Force's recommended \"reasonable person standard\" does not specifically incorporate consideration of implicit bias, because it would replace the current subjective standard with an objective one, it would [*17] represent a significant improvement over our current Batson test because it removes {**42 NY3d at 742} the requirement of the court's evaluation of the nonmoving party's subjective intent to discriminate. Instead, the \"reasonable person standard\" asks the court to consider whether, from an outside person's perspective, it appears that race played any role at all, increasing the likelihood of empaneling a \"jury selected by racially neutral criteria\" ( People v Childress , 81 NY2d 263, 267 [1993]) Beyond the obvious virtues of relying on a test taken from an objective perspective that will be consistent from court to court and trial to trial, and of rooting out implicit biases, not just intentional ones, the use of an objective standard removes some of the stigma attached to a lawyer's failed attempt to justify a peremptory strike, because the rejection of a strike does not ascribe discriminatory intent to the lawyer: \"No one wishes to accuse those with whom they regularly associate, both professionally and often personally, of moral wrongdoing. Yet virtually every Batson ruling potentially carries such a stigma. . . . Batson violations necessarily involve findings of such socially unacceptable behavior as intentional race or sex discrimination, as well as false representations of the reasons for those unsociable acts. . . . [R]ulings that an attorney has purposefully discriminated by race or sex and then lied about having done so seem freighted with a dimension of personal moral delinquency\" (Robin Charlow, Batson \"Blame\" and its Implications for Equal Protection Analysis , 97 Iowa L Rev 1489, 1493 [2012]). Our recent decision in People v Boone (30 NY3d 521 [2017]), holding that when a cross-racial eyewitness identification is introduced to prove the identity of a criminal defendant, the defendant is entitled to a jury instruction on the frequent unreliability of such identifications, underscores our court's commitment to eliminating racial bias in the Unified Court System, as does the Unified Court System's operation of its robust Office of Justice Initiatives. The majority's decision undermines that overarching goal. [FN11] Because our Court is now unwilling to apply the Batson test in a meaningful manner, we can only {**42 NY3d at 743} hope that the legislature will implement measures to reduce the effect of bias in the selection of jurors. Judges Garcia, Singas and Pritzker [FN*] concur. Chief Judge Wilson dissents in an opinion, in which Judges Rivera and Troutman concur. Judge Halligan took no part. Order affirmed. Footnotes Footnote 1: K.L. was stricken on consent of defendant, obviating any need for the People to exercise a peremptory strike as to that juror. Footnote 2: The facts of Foster v Chatman (578 US 488 [2016]), relied on by the dissent, are strikingly different. In Foster , the prosecutor's voir dire notes and other documentary evidence contained considerable evidence that the People had taken into account the race of the jurors as part of their deliberations as to which jurors to strike, with the Supreme Court observing that the \"sheer number of references to race in [the prosecution's] file is arresting\" ( id. at 513). A \"compelling\" showing of disparate treatment of Black and non-Black prospective jurors, combined with \"shifting explanations, . . . misrepresentations of the record, and the persistent focus on race in the prosecution's file,\" left the Supreme Court with the \"firm conviction that the strikes [in question] were motivated in substantial part by discriminatory intent\" ( id. at 512-513 [internal quotation marks omitted]). To be sure, such conspicuous evidence of racial motivation is not required for a defendant to sustain the ultimate burden of persuasion on pretext. Nonetheless, the ultimate burden of persuasion on pretext rests on defendant and, here, the People's race-neutral explanations find support in the record. Footnote 3: It is unclear why the dissent includes other potential jurors in its analysis. A.S., who was struck for cause, and T.C., on whom the People exercised a peremptory strike, are not at issue in this appeal. Footnote 4: To be sure, there have been many calls for the reform of peremptory strikes ( see generally Commonwealth v Fernandes , 487 Mass 770, 776 n 6, 170 NE3d 286, 298 n 6 [2021] [\"peremptory challenges themselves are not essential to the constitutional guarantee of a fair trial by an impartial jury, and some have advocated for their outright elimination\"]; see also New York State Justice Task Force, Recommendations Regarding Reforms to Jury Selection in New York [Aug. 2022], http://www.nyjusticetaskforce.com/pdfs/Report-on-Recommendations-Regarding-Reforms-to-Jury-Selection-in-New-York.pdf). However, as the law stands, our review is limited to whether there was record support for the trial court's determination. Indeed, defendant neither sought below nor seeks before this Court an alteration to Batson such as that proposed by the dissent. Footnote 1: The majority observes that the ability to arrest the defendant for trespass \"does little to mitigate the concern that, if he was not identified by the victims as one of the robbers, the perpetrators of that crime might have remained at large in the community\" (majority op at 720). But that observation skirts the problem here: an impermissibly suggestive showup increases the probability that the police have apprehended the wrong person—which not only leaves the perpetrator at large in the community, but gives the false sense of security that the perpetrator is in police custody. The majority's other observations do not advance its position: Mr. Wright was not \"shown to the witnesses with any evidence of the stolen property\" ( id. at 721) because (unlike the situation in Riley ) Mr. Wright was not found with any evidence of the stolen property, which increases the probability that he was not the robber. Mr. Wright \"was not shown handcuffed in the back of a police car\" ( id. at 720-721), but the witness saw him being removed from the back of a police car with his hands behind his back—hardly a meaningful distinction in terms of suggestiveness. Footnote 2: This is not, as the majority claims, a \"transference\" theory between the first and third Batson steps ( see majority op at 718). At step one, the trial court made findings of fact that Mr. Wright had demonstrated prima facie that the prosecutor struck C.C. solely because of C.C.'s race. In view of that factual finding, the evidence tendered by the People at step two, providing some nondiscriminatory reasons for the strike—even if true—is at most legally sufficient to show that the prosecutor had mixed motives, some permissible, some not. As our case law and United States Supreme Court case law firmly establishes, and the majority concedes, a mix of discriminatory and nondiscriminatory motives still establishes a Batson violation ( see Luciano , 10 NY3d at 505; Smith , 966 A2d at 369). Footnote 3: The People now speculate that \"[p]erhaps [the prosecutor] meant to refer to the additional cousins who were arrested instead of 'friends.' \" However, \"our review power is limited to the examination of [the] Supreme Court's pretext determination in light of the reasons placed on the record by\" the prosecutor ( Hecker , 15 NY3d at 657), and the reason given here was that C.C. had friends involved in multiple arrests. The prosecutor's mischaracterization that friends of C.C.'s were involved in multiple arrests is strong evidence that the prosecutor was engaged in fabricating pretextual reasons to strike C.C. Footnote 4: In an attempt to distinguish Foster , the majority points to other portions of Foster that reference the record in that case. However, as the portion quoted above makes clear, this part of Foster' s analysis relates to the prosecutor's race-based differential use of strikes for otherwise similarly situated jurors, not anything having to do with the \"prosecutor's voir dire notes and other documentary evidence\" (majority op at 717-718 n 2). Footnote 5: \"THE COURT: [C.C.] did explain that number of people arrested in the house that he was present concerning marijuana. I recall that. In his background. Okay.\" Footnote 6: Media and law enforcement agencies use the term \"raid\" to describe legitimate law enforcement actions ( see e.g. Retired Vice Detective and Seven Active Duty NYPD Police Officers Indicted for Involvement with Prostitution Ring in Queens, Brooklyn, and Nassau Counties , NYPD Press Release, Sept. 13, 2018, https://www.nyc.gov/site/nypd/news/pr0913/retired-vice-detective-seven-active-duty-nypd-police-officers-indicted-involvement-with#/0 [retired detective indicted when he \"allegedly used his contacts within the NYPD to thwart raids by paying for confidential police information\" (emphasis added)]; Fentanyl Dealer Sentenced to 20 Years in Prison , DEA Press Release, Mar. 18, 2024, https://www.dea.gov/press-releases/2024/03/18/fentanyl-dealer-sentenced-20-years-prison [\"Mr. Ray admitted that during a 2019 raid on his apartment, law enforcement seized more than 28,000 counterfeit fentanyl pills weighing more than 12.5 kilograms. During subsequent raids on the homes of two coconspirators, law enforcement seized an additional 114,000 counterfeit fentanyl pills\" (emphasis added)]). Footnote 7: See e.g. Ferreira v City of Binghamton , 38 NY3d 298 , 317 (2022) (describing lawful no-knock search warrants as \"raids [that] are often conducted in the early-morning hours to catch people off-guard\"); People v Mirenda , 57 NY2d 261, 264-265 (1982) (upholding conviction where \"the police, armed with a search warrant\" conducted a \"raid on a Yonkers garage\"). Footnote 8: See e.g. Caren Myers Morrison, Negotiating Peremptory Challenges , 104 J Crim L & Criminology 1, 4-5 (2014) (\"[T]he Batson framework relies on apparently commonsense assumptions about human behavior [that] are contrary to what we know about human mental processes and the influence of race on decisionmaking. . . . [ Batson is] inconsistent with recent advances in cognitive social psychology. While long suspected, there is now substantial empirical evidence that most of us labor under some amount of implicit bias against racial minorities, even when we believe ourselves to be unbiased. . . . It is time to subject Batson to behavioral realism—the demand 'that the law account for the most accurate model of human thought, decisionmaking, and action provided by the sciences' \"), quoting Jerry Kang & Kristin Lane, Seeing through Colorblindness: Implicit Bias and the Law , 58 UCLA L Rev 465, 468 (2010). Footnote 9: Acknowledging the ubiquity and intractability of implicit bias, those states explicitly ascribe the to the objective observer cognizance of that phenomenon. Washington, for example, defines an \"objective observer\" as one who \"is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors\" (Wash Ct Gen Rules rule 37 [f]; see also Cal Civ Pro Code § 231.7 [d] [2] [A] [\"(A)n objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California\"]; Conn Rules Super Ct § 5-12 [e] [1] [\"an objective observer . . . is aware that purposeful discrimination, and implicit, institutional, and unconscious biases, have historically resulted in the unfair exclusion of potential jurors on the basis of their race, or ethnicity\"]). Footnote 10: The Justice Task Force is composed of distinguished \"prosecutors, defense attorneys, judges, law enforcement personnel, legal scholars, legislative representatives, executive branch officials, forensic experts and victim advocates\" (New York State Justice Task Force, Mission Statement, About The Task Force , http://www.nyjusticetaskforce.com/mission.html [accessed June 10, 2024]). Its mission is \"to promote fairness, effectiveness, and efficiency in the criminal justice system; to eradicate harms caused by wrongful convictions; to further public safety; and to recommend judicial and legislative reforms to advance these causes throughout the State of New York\" ( id .). Footnote 11: Likewise, the majority's statements that \"our review is limited to whether there was record support\" (majority op at 719 n 4) and \"the only Batson issue before us on this appeal is whether the record supports the trial court's determination at step three\" ( id. at 718) are incompatible with our powers and responsibilities. Batson itself is a court-made rule, as are the improvements to Batson adopted by the Supreme Courts of Washington and New Jersey; and our Court has regularly announced new rules to promote the fairness of the trial process (most recently in Boone ). Footnote *: Designated pursuant to NY Constitution, article VI, § 2. "
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"value": "Record supported\nconclusions below that the People's reasons for striking two prospective\njurors were not pretextual. Despite professing he could be fair, one of the\ntwo had exhibited hard feelings toward police. The other, a Probation\nDepartment employee, worked with juveniles and was previously a\ncaseworker."
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2024.06629 | [
{
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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 Kellum 2024 NY Slip Op 06629 [233 AD3d 1374] December 26, 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] The People of the State of New York, Respondent, v Darnell Kellum, Appellant. Danielle Neroni Reilly, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent. Pritzker, J. Appeals (1) from a judgment of the Supreme Court (Peter A. Lynch, J.), rendered February 5, 2020, in Albany County, upon a verdict convicting defendant of the crimes of burglary in the second degree (two counts), aggravated criminal contempt (two counts), criminal contempt in the second degree (three counts), assault in the second degree, strangulation in the second degree and tampering with a witness in the fourth degree, and (2) by permission, from an order of said court, entered November 1, 2023, in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing. Defendant was charged in an 11-count indictment with crimes related to the assault of the victim as well as multiple violations of an order of protection, issued on the victim's behalf, on various dates between December 2018 and February 2019. Specifically, defendant was charged with two counts of burglary in the second degree (counts 1 and 4), two counts of assault in the second degree (counts 5 and 6), strangulation in the second degree (count 7), two counts of aggravated criminal contempt (counts 2 and 8), three counts of criminal contempt in the second degree (counts 3, 9 and 10) and tampering with a witness in the fourth degree (count 11). A six-day jury trial was held, and, upon its conclusion, defendant was convicted of two counts of burglary in the second degree (counts 1 and 4), one count of assault in the second degree (count 5), strangulation in the second degree (count 7), two counts of aggravated criminal contempt (counts 2 and 8), three counts of criminal contempt in the second degree (counts 3, 9 and 10) and tampering with a witness in the fourth degree (count 11). Defendant was thereafter sentenced, as a second violent felony offender, to a prison term of 15 years, to be followed by five years of postrelease supervision, for the conviction of count 1 and a consecutive prison term of seven years, to be followed by five years of postrelease supervision, for the conviction of count 5. On the remaining counts, he was sentenced to equal or lesser concurrent terms of incarceration. Subsequently, defendant moved pursuant to CPL 440.10 to have the judgment of conviction vacated, alleging ineffective assistance of counsel and a Brady violation. Supreme Court denied the motion without a hearing, finding, among other things, that the alleged Brady violation, although genuine, was of little or no significance given the overwhelming evidence of defendant's guilt. Defendant appeals from the judgment of conviction and, by permission, from the denial of his CPL article 440 motion. Defendant argues that the verdict as to the counts charging him with varying degrees of criminal contempt (counts 2, 3, 8, 9 and 10) is not supported by legally sufficient evidence as the People failed to prove that there was a valid order of protection in effect at the time of the crimes, as the order of protection admitted into evidence had an inaccurate [*2] date of birth. At trial, the People admitted into evidence, as People's exhibit 1, a certified copy of a temporary order of protection issued by Troy City Court on April 16, 2018, for the protection of the victim. This order of protection has an expiration date of April 15, 2019. The order indicates that defendant was to stay away from the victim, refrain from any communication with her and refrain from, among other things, assault, strangulation and criminal obstruction of breathing or blood circulation. On the order of protection, the boxes are checked indicating that defendant was advised in court of the issuance and contents of the order and that the order was personally served on defendant in court, as confirmed by defendant's signature. The events at issue in this case occurred in December 2018, January 2019 and February 2019. At trial, the People called Viviane Guicheney, a supervisory clerical assistant for Troy City Court, who testified that she recognized the order of protection, that she had created it, that she recognized defendant as the subject of the order because she was in court when the order was issued and that the order could not have been generated unless defendant was in court on the relevant date. Additionally, Guicheney testified that the order contained a typographical error as to defendant's date of birth and that defendant had been advised of the order's contents by the judge who issued it, thereby indicating that defendant must have known of the order's contents when he signed it. Viewing the foregoing in a light most favorable to the People as we must ( see People v Danielson , 9 NY3d 342 , 349 [2007]), \"there is a valid line of reasoning and permissible inferences through which a rational jury could have found . . . beyond a reasonable doubt\" that there was a valid order of protection in effect at the time of the crimes ( People v Everett , 231 AD3d 1296 , 1301 [3d Dept 2024]). [FN*] We are unpersuaded by defendant's contention that the indictment must be dismissed because he appeared before the grand jury in prison garb and shackles. Although we do agree that the People erred in failing to articulate the requisite reasonable basis for the restraints, \"reversal is not required since the prosecutor's cautionary instructions to the grand jury were sufficient to dispel any potential prejudice\" ( People v Muniz , 93 AD3d 871 , 872 [3d Dept 2012], lv denied 19 NY3d 965 [2012]; see People v Shabazz , 211 AD3d 1093 , 1100 [3d Dept 2022], lv denied 39 NY3d 1113 [2023]). Defendant next argues that Supreme Court erred when it permitted the victim's grand jury testimony to be read at trial. \"As a general rule, the [g]rand [j]ury testimony of an unavailable witness is inadmissible as evidence-in-chief . . . [unless] the People establish by clear and convincing evidence that the witness's unavailability was procured by misconduct on the part of the defendant\" ( People v Dubarry , 25 NY3d 161 , 174 [2015] [internal quotation marks and citations omitted [*3] ]; see People v Johnson , 250 AD2d 922, 924-925 [3d Dept 1998], affd 93 NY2d 254 [1999]; see also US Const, 6th Amend; NY Const, art I, § 6). Indeed, \"[w]henever the People allege specific facts which demonstrate a distinct possibility that a criminal defendant has engaged in witness tampering, the court must grant a Sirois hearing to test the validity of that claim. A Sirois hearing is no mere formality. The Sirois hearing plays the valuable role of sentry, admitting statements not subject to cross-examination only where the requisite link between the defendant's misconduct and the witness's silence has been established\" ( People v Robinson , 216 AD3d 1252 , 1253 [3d Dept 2023] [internal quotation marks, brackets and citations omitted]; see People v Smart , 23 NY3d 213 , 220-221 [2014]; People v Bryant , 200 AD3d 1483 , 1490-1491 [3d Dept 2021], appeal dismissed 38 NY3d 1158 [2022]). At the Sirois hearing, an officer with the Colonie Police Department identified defendant and testified that he had observed the injured victim when she was being treated at a local hospital the day of the February 2019 incident. While there, the victim had received several text messages, of which the officer had taken photographs, and which appeared to be from defendant. Many of these text messages threatened the victim with severe harm. Additionally, two recorded calls from the jail where defendant was being held after his arrest were admitted into evidence. In these calls, which were placed days after his arrest but before he was indicted, defendant can be heard talking to the victim and, among other things, instructing her multiple times to go to the District Attorney's office and tell them that he did not beat her, to get the charges dropped. While attempting to get the victim to cooperate with his request, defendant repeatedly assured her of his love, that he was going to change and that he did not mean to hurt her. Defendant specifically referred to a court appearance he had the evening of the call, telling the victim to recant her statement before that court appearance. Testimony from Amanda Kyle-Sprague, the bureau chief of the crime victims unit in the Albany County District Attorney's office, indicated that she had received a telephone call from the victim months after she testified before the grand jury, wherein the victim indicated that defendant had threatened to kill her if charges against him were not dropped. Kyle-Sprague stated that the victim was very fearful, that she felt that making a police report would further antagonize defendant and that unless Kyle-Sprague could promise to keep defendant incarcerated, which she could not do, the victim would not participate in the case against him. Additionally, Kyle-Sprague indicated that she believed the victim had moved from New York shortly after her conversation and that the victim was unwilling to testify at trial because, for the first time in her life, she felt safe. Given the foregoing, we find that \"[t] [*4] he evidence presented at the Sirois hearing, and inferences that logically flow therefrom, were sufficient to support [Supreme Court's] determination, under the clear and convincing evidence standard, that . . . defendant's misconduct caused the [victim] to be unavailable for purposes of testifying at trial\" ( People v Zafor , 161 AD3d 1017 , 1018 [2d Dept 2018] [citation omitted], lv denied 31 NY3d 1155 [2018]; see People v Nelson , 156 AD3d 1112 , 1117-1118 [3d Dept 2017], lv denied 31 NY3d 1151 [2018]; People v Brown , 308 AD2d 379, 379 [1st Dept 2003], lv denied 1 NY3d 595 [2004]). Moreover, we find unpersuasive defendant's contention that, for a witness to be unavailable, the People must seek, and the witness must ignore, a material witness order ( see generally People v Shelly , 172 AD3d 1245 , 1246 [2d Dept 2019], lv denied 34 NY3d 954 [2019]; People v Encarnacion , 87 AD3d 81 , 88 [1st Dept 2011], lv denied 17 NY3d 952 [2011]; People v Delarosa , 218 AD2d 667, 668 [2d Dept 1995]). Thus, Supreme Court properly granted the People's motion to read the victim's grand jury testimony at trial. Defendant's assertion that Supreme Court erred when it refused to allow him, mid-trial, to proceed pro se despite his attorney's unwillingness to pursue lines of questioning defendant wanted counsel to press is unpreserved given that defendant did not request to proceed pro se ( see generally People v Cabrera , 41 NY3d 35 , 42 [2023]). Similarly, to the extent defendant's complaints about counsel's failings could be understood as seeking substitute counsel, no specific factual allegations or serious complaints regarding defense counsel were made that would have obligated the court to further inquire into the merit of defendant's complaints ( see People v Porto , 16 NY3d 93 , 99-100 [2010]). Defendant's final argument on direct appeal challenges his sentence as harsh and excessive. To the extent defendant is arguing that he was punished for exercising his right to a jury trial given that the sentence imposed is longer than that offered pretrial, this argument is not preserved given that defendant failed to raise it at sentencing ( see People v Gentry , 218 AD3d 919 , 925 [3d Dept 2023], lv denied 40 NY3d 1012 [2023]; People v Houze , 177 AD3d 1184 , 1189 [3d Dept 2019], lv denied 34 NY3d 1159 [2020]). We have reviewed the sentencing minutes and find that defendant's legal sentence is neither harsh nor severe, as his actions before, during and after trial indicated little remorse, he persistently lied to the court, failed to take responsibility for his actions and repeatedly attempted to manipulate the witness, the court and the legal process. Additionally, we take note of defendant's extensive criminal history. As such, we discern no basis upon which to disturb the imposed sentence ( see People v Kilgore , 218 AD3d 1054 , 1058 [3d Dept 2023], lv denied 40 NY3d 1081 [2023]; People v Oliveras , 203 AD3d 1233 , 1239-1240 [3d Dept 2022], lv denied 38 NY3d 1073 [2022]). We have [*5] reviewed defendant's remaining arguments raised on his direct appeal, including the denial of his Brady claim raised by way of a CPL 330.30 motion, and find them unavailing. We now turn to defendant's contentions regarding the denial of his CPL 440.10 motion without a hearing. \"It is well settled that a court may deny a CPL 440.10 motion without conducting a hearing if the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts\" ( People v Dogan , 37 NY3d 1007 , 1007-1008 [2021] [internal quotation marks, brackets and citation omitted]; see People v Santana , 179 AD3d 1299 , 1303 [3d Dept 2020], lv denied 35 NY3d 973 [2020]). Further, \"a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence\" or if the motion fails to allege any basis for the motion ( People v Quinn , 210 AD3d 1284 , 1292 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 NY3d 1079 [2023]; see People v Ferrer , 224 AD3d 1092 , 1096 [3d Dept 2024], lv denied 41 NY3d 1018 [2024]). Indeed, \"[a] hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief\" ( People v Gilmore , 200 AD3d 1184 , 1193 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], lv denied 38 NY3d 927 [2022]; see People v Ferrer , 224 AD3d at 1096). We turn first to defendant's argument regarding an alleged Brady violation due to the People's failure to disclose the disciplinary records of Frank Peris, the police officer who pulled over the vehicle in which the victim and defendant were found together, in violation of the order of protection, in January 2019. \"It is axiomatic that the People have an obligation under Brady to disclose evidence and information in their possession that is both material and favorable to the defense. To establish a Brady violation, a defendant must demonstrate that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material\" ( People v Wideman , 192 AD3d 1384 , 1387 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], affd 38 NY3d 1067 [2022]). Whether undisclosed evidence is material under Brady 's third prong turns on \"whether there is a reasonable possibility that the verdict would have been different if the evidence had been disclosed\" ( People v Rong He , 34 NY3d 956 , 959 [2019] [internal quotation marks, emphasis and citations omitted]; see People v Slivienski , 204 AD3d 1228 , 1240 [3d Dept 2022], lv denied 38 NY3d 1136 [2022]). Approximately one month after the jury trial, the People sent a letter to defendant's trial counsel informing [*6] him that, a day prior, they learned of two disciplinary actions in Peris' personnel file. Specifically, the People provided defendant with information that Peris was the subject of two disciplinary actions, one in July 2012 and another in January 2019. In both incidents, Peris had acted wrongfully by using unnecessary force when arresting individuals and, in the first instance, had deceptively tried to cover up his wrongful actions. As Supreme Court properly found, the failure to disclose these records was clearly a violation of the first prong of Brady , as they are impeaching in nature ( see People v Slivienski , 204 AD3d at 1239). However, defendant failed to establish the materiality element. Indeed, Peris' testimony was only relative to count four of the indictment, charging defendant with criminal contempt in the second degree relative to the January 2019 traffic stop. The victim, in her grand jury testimony, admitted to having been in the vehicle with defendant on that day. Thus, even if testimony about Peris' prior disciplinary actions had been elicited, \"there is no reasonable possibility that disclosure of the evidence would have changed the result of the proceeding\" ( People v Slivienski , 204 AD3d at 1240 [internal quotation marks, brackets and citations omitted]; see People v Rong He , 34 NY3d at 959). Accordingly, Supreme Court did not abuse its discretion by denying this portion of defendant's CPL 440.10 motion without a hearing ( see People v Dogan , 37 NY3d at 1007). We now turn to defendant's assertion in his CPL 440.10 motion, that he did not receive the effective assistance of counsel. Specifically, defendant contends that he received ineffective assistance of counsel because, prior to being presented to the grand jury in prison garb and shackles, he had not met with an attorney, knew nothing about what was happening at the grand jury proceeding and offered testimony at the grand jury proceedings without counsel present. Even so, defendant's attorney made no objections on any of these points nor was a motion ever made to dismiss the indictment in light of the People's prejudicial conduct before the grand jury. Defendant further maintains that counsel was ineffective by failing to investigate whether the alleged protective order was operative at the time of defendant's purported violation. Additionally, defendant contends that he was denied effective counsel because his attorney refused to take defendant's suggestions seriously, which effectively denied him his right to participate in his own defense. \"In New York, the standard for effective assistance is meaningful representation by counsel. Our standard is more protective than the Federal standard because even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial\" ( People v Debellis , 40 NY3d 431 , 436 [2023]). \"The meaningful representation standard requires an assessment of [*7] the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation. Counsel's performance should be objectively evaluated to determine whether it was consistent with strategic decisions of a reasonably competent attorney\" ( People v Watkins , — NY3d &mdash, &mdash, 2024 NY Slip Op 02842, *2 [2024] [internal quotation marks and citations omitted]; see People v Calafell , 211 AD3d 1114 , 1120 [3d Dept 2022], lv denied 39 NY3d 1077 [2023]). Here, Supreme Court did not abuse its discretion in denying defendant's CPL article 440 motion in its entirety, indicating that it found defendant's claims relating to ineffective assistance of counsel unpersuasive. Specifically, the record supports the court's determination that defendant's presentation to the grand jury in shackles and prison garb did not undermine the integrity of the proceeding because a limiting instruction was provided. Defendant's further contention, that it was ineffective for trial counsel not to seek dismissal of the indictment based upon this conduct, does not amount to ineffective assistance of counsel, given that, as previously discussed, such an \"argument[ ], objection[ ] or motion[ ] [would have] had little or no chance of success\" ( People v Bostic , 174 AD3d 1135 , 1138 [3d Dept 2019], lv denied 34 NY3d 1015 [2019]). The court further noted that despite defendant's contention that he was uninformed and unprepared for the grand jury presentation, the minutes of the proceeding show that he conferred with his counsel no less than six times during the proceeding, acknowledged that he understood that he had requested to appear to give testimony, that said testimony could be used against him and that he had denied any wrongdoing during the proceeding. Additionally, the court determined that defense counsel's election not to further explore the veracity of the order of protection did not constitute ineffective assistance of counsel, as a certified copy of the order was provided to defendant both at the grand jury proceeding and at trial. The court noted that the certified copy had been presented at trial as exhibit one and that the alleged failure to request the transcript from the date of the hearing at Troy City Court by defense counsel did not constitute ineffectiveness. Finally, the court indicated that defendant believed he had received ineffective assistance because he was not allowed to effectively participate in his own defense, which the court found to be without merit. A review of the record fully supports this conclusion. Accordingly, as to his ineffective assistance of counsel argument, defendant provided nothing to support the existence of material nonrecord facts that need to be established and would entitle him to relief; thus, a hearing was not warranted ( see People v Ferrer , 224 AD3d at 1096; People v Gilmore , 200 AD3d at 1193). Furthermore, defendant's claims of ineffective assistance of counsel are self-serving and contradicted [*8] by the record ( see People v Johnson , 194 AD3d 1267 , 1269-1270 [3d Dept 2021]). Indeed, defendant received meaningful representation, because, given the evidence, the law and the circumstances of this case, it is clear that defendant's representation was at all times consistent with the strategic decisions of a reasonably competent attorney, as the alleged failings of counsel now pressed by defendant in his CPL article 440 appeal were grounded in sound strategy, had little or no chance of success or are mischaracterized by defendant ( see People v Debellis , 40 NY3d 431 , 436 [2023]; People v Calafell , 211 AD3d at 1120). We have reviewed defendant's remaining contentions relative to the denial of his CPL 440.10 motion without a hearing and find them to be without merit. Aarons, J.P., Ceresia, McShan and Mackey, JJ., concur. Ordered that the judgment and the order are affirmed. Footnotes Footnote *: Defendant also argues that the order of protection was issued as a result of a case that was dismissed and sealed due to a six-month adjournment in contemplation of dismissal and, as such, it was not in effect at the time of the crimes alleged in the indictment. Not only was this argument not raised at trial, making it unpreserved for this Court's review on appeal ( see People v Bombard , 187 AD3d 1417 , 1417 [3d Dept 2020]), but it also is not supported by the record. "
},
{
"from": "gpt",
"value": "In order to prevail at a Sirois hearing to determine the admissibility of an\nunavailable witness's pretrial testimony, the People need not demonstrate\nthey first obtained a material witness order which the subject witness\nignored."
}
]
|
2024.06166 | [
{
"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 Pan 2024 NY Slip Op 06166 [233 AD3d 492] December 10, 2024 Appellate Division, First 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 Jia Pan, Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Lena Janoda of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Faith DiTrolio of counsel), for respondent. Appeal from judgment, Supreme Court, New York County (Diane Kiesel, J.), rendered June 21, 2022, convicting defendant, upon his plea of guilty, of assault in the first degree and endangering the welfare of a child, and sentencing him to an aggregate term of 18 years, unanimously reversed, on the law, defendant's motion to withdraw and vacate his plea granted, and the matter remanded for further proceedings in accordance herewith. The People concede that defendant's right to counsel was violated by the court's ruling improperly prohibiting defendant from retaining an unpaid attorney who worked at a public defender organization which represented him on a related matter ( see People v Arroyave , 63 AD2d 127, 132 [1st Dept 1978], mod on other grounds 49 NY2d 264, 270-271 [1980]), and by the conflict of interest between assigned counsel and defendant that arose from counsel's disparaging statements, in court and in written submissions, about defendant and his possible defense of accidental stabbing. Defendant was also deprived of effective assistance when his counsel advised him that because of his plea, he will most likely be deported, since it is clear that defendant's conviction would trigger mandatory deportation ( see Padilla v Kentucky , 559 US 356, 368-369 [2010]; Singh v Barr , 939 F3d 457 [2d Cir 2019]; People v Pequero , 158 AD3d 421 [1st Dept 2018]). The remarks made by counsel on the record to the judge, as to what he advised his client with regard to the immigration consequences of his plea, are sufficient to permit review on direct appeal ( see People v Doumbia , 153 AD3d 1139 [1st Dept 2017]). Because we find defendant received ineffective assistance of counsel, it cannot be said that defendant voluntarily, knowingly, and intelligently entered his plea of guilty. We hereby vacate defendant's plea, and the case is remanded to permit defendant to proceed with new counsel. Concur—Manzanet-Daniels, J.P., Singh, Gesmer, Rodriguez, Michael, JJ."
},
{
"from": "gpt",
"value": "Defendant should have been permitted to withdraw his plea before\nsentencing. Before defendant agreed to accept the People's offer, his\nattorney told him that he would \"most likely be deported\" as a result of\npleading guilty; in fact, the plea subjected him to mandatory deportation.\nPlea vacated & case remanded to trial court for further proceedings with a\nnew attorney."
}
]
|
2024.04978 | [
{
"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 Guerra 2024 NY Slip Op 04978 [231 AD3d 852] October 9, 2024 Appellate Division, Second 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 Diego Guerra, Appellant. Patricia Pazner, New York, NY (Hannah Kon of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Joseph M. DiPietro of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered October 3, 2019, convicting him of promoting a sexual performance by a child (19 counts) and possessing a sexual performance by a child (49 counts), upon a jury verdict, and imposing sentence. Ordered that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial. The defendant's contention that the evidence was legally insufficient to establish his guilt is partially unpreserved for appellate review ( see CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621 [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 [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 [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]). We are nevertheless compelled to reverse the judgment of conviction because the defendant's trial counsel (hereinafter defense counsel) was ineffective in signing, and permitting the jury to consider, a stipulation containing definitions of the crimes charged that eliminated the requisite mens rea element. Under the federal standard for ineffective assistance of counsel, a defendant must show that counsel's performance \"fell below an objective standard of reasonableness, and that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' \" ( People v Bodden , 82 AD3d 781 , 783 [2011], quoting Strickland v Washington , 466 US 668, 694 [1984]; see People v Tindley , 202 AD3d 838 , 838-839 [2022]). Under the New York standard, a court must examine whether \" 'the evidence, the law, and the circumstances of a particular case, [*2] viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation' \" ( People v Oliveras , 21 NY3d 339 , 346 [2013], quoting People v Baldi , 54 NY2d 137, 147 [1981]; see People v Benevento , 91 NY2d 708, 712 [1998]; People v Parvez , 209 AD3d 885 , 886-887 [2022]). When reviewing claims of ineffective assistance, courts should take care to avoid \"confusing true ineffectiveness with mere losing tactics\" and \"according undue significance to retrospective analysis\" ( People v Baldi , 54 NY2d at 146; see People v Goondall , 173 AD3d 896 , 898 [2019]). Although \"[i]solated errors in counsel's representation generally will not rise to the level of ineffectiveness\" ( People v Henry , 95 NY2d 563, 565-566 [2000]), a single, egregious error by counsel may deprive a defendant of the right to effective assistance ( see People v Turner , 5 NY3d 476 , 480-481 [2005]; People v Henry , 95 NY2d at 566; People v Calderon , 66 AD3d 314 , 320 [2009]). Here, the defendant proceeded to trial on various counts of two crimes, promoting a sexual performance by a child and possessing a sexual performance by a child, all of which stemmed from videos and images affiliated with the defendant's laptop computer (hereinafter the laptop). \"A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof , he produces, directs or promotes any performance which includes sexual conduct by a child less than [17] years of age\" (Penal Law § 263.15 [emphasis added]). \"A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof , he knowingly has in his possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than [16] years of age\" ( id. § 263.16 [emphasis added]). A few days before the trial commenced, defense counsel and the prosecutor executed a stipulation entitled \"Stipulation Elements of Crime.\" Among other things, they stipulated to the fact that certain videos underlying the counts of promoting a sexual performance by a child \"depicted . . . a performance, which included sexual conduct by a child less than 17 years of age,\" and similarly stipulated as to the content of certain images underlying the counts of possessing a sexual performance by a child. We share the view of our colleagues in the dissent that these factual stipulations were intended to shield the jury from viewing the child sexual abuse perpetrated in the videos and images. However, the stipulation went on to state, in pertinent part, that \" whoever possessed each of the . . . videos, promoted a performance, which included sexual conduct by a child . . . with knowledge of the character and content of the videos,\" and \" whoever possessed these videos and images, knowingly had in his or her possession or control, or knowingly accessed with intent to view, a performance which included sexual conduct by a child\" (emphasis added). A reasonable reading of this additional language in the stipulation is that possession alone is tantamount to promoting a performance with knowledge \"of the character and content of\" the videos, which is required to support a conviction of promoting a sexual performance by a child under Penal Law § 263.15, and that possession alone is tantamount to knowing \"possession or control\" or \"access[ ] with intent to view,\" which is required to support a conviction of possessing a sexual performance by a child under Penal Law § 263.16. Thus, this additional language in the stipulation set forth definitions of the crimes that had no mens rea element ( cf. id. §§ 263.15, 263.16), under which possession alone could support a guilty verdict for each crime. In its initial instructions to the jury, the Supreme Court correctly charged the jury as to the crimes—i.e., the court's charge correctly included the mens rea element for each crime consistent with the definitions in the Penal Law. Among the contentions made by defense counsel in her opening statement was that, although a detective found the laptop \"in the room\" that the defendant rented, the laptop was not \"passcode protected,\" and it was out in the open in a single-family house that had been partitioned into 11 bedrooms. Thus, defense counsel presented a theory that other individuals had access to the laptop, and other individuals may have been responsible for promoting the offending videos and images or causing them to be located on the laptop. Contrary to the suggestion of our dissenting colleagues, the defense theory in this case was not limited solely to the notion that the defendant did not possess the offending videos and images. The record reflects that the defendant's knowing possession of the videos and images was disputed at trial, and the [*3] defense theory included a lack of \"knowing\" possession or control ( id. § 263.16). At the close of the People's case, the Supreme Court confirmed that the stipulation was in evidence and discussed the stipulation for several minutes. At this time, defense counsel affirmatively indicated that she had no objection to the court reading the stipulation to the jury. After the jury returned to the courtroom, the court read the entire stipulation into the record and asked whether \"both sides agree[d] to those stipulations.\" Defense counsel did not object. Defense counsel called one witness, an expert in digital forensics analysis, who testified that the laptop was not passcode protected and, if an external device, such as a flash drive, containing images was connected to the laptop, \"thumbnail images\" would automatically be created in \"internal records of\" the laptop. During summation, defense counsel referenced the stipulation, which contained the language eliminating the mens rea element for each crime, and proceeded to contend that many people lived in the defendant's house. Thus, defense counsel invited the jury to consider that someone else may have used the laptop to retrieve or share the videos and images. During deliberations, the jury requested a copy of the stipulation. At this point, defense counsel objected to the jury being provided with a copy of the stipulation and asked that the Supreme Court modify the language in the stipulation. In opposition, the People contended that the stipulation had been thoroughly discussed and agreed upon. The court denied defense counsel's application, noting that the parties had agreed to the stipulation and placed it into evidence, and provided the jury with a copy of the stipulation. Thereafter, the jury sent a note asking if it was \"bound by the parties['] stipulation.\" Defense counsel requested that the court either modify the stipulation or give the jury an appropriate instruction advising them of the required mens rea element of the charged crimes. Defense counsel contended, in part, \"can we all agree that I certainly did not sign a stipulation with a strict liability that if you found [the defendant] owned the [laptop] that he knew the images were there and that they [depicted child sexual abuse], because if that's the interpretation, I am duty bound to ask for a mistrial based on ineffective assistance of counsel.\" The court denied the motion for a mistrial. Thereafter, the jury found the defendant guilty of 19 counts of promoting a sexual performance by a child and 49 counts of possessing a sexual performance by a child. This record, including defense counsel's remarks, reflects that defense counsel's error in signing a stipulation that included incorrect and prejudicial definitions of the crimes charged was not part of any legal strategy or tactic. Significantly, the stipulation's elimination of the requisite mens rea element undermined the defense theory that, although the defendant undisputedly owned the laptop, someone else in his high-occupancy house may have been responsible for the videos or images being placed on the laptop or being trafficked using the laptop. Defense counsel's error in signing the stipulation was compounded by her failure to object to its admission into evidence and its presentation to the jury at the close of the People's case. The error was further compounded by defense counsel's failure to object to the disputed language in the stipulation until after the jury began its deliberations. These related errors left the jury on its own to choose between conflicting definitions of the crimes—one set that included the requisite mens rea element and one set that did not ( cf. People v Lourido , 70 NY2d 428, 435 [1987]; People v Byas , 172 AD2d 242, 243 [1991]). The detrimental impact on the jury and the prejudice to the defendant were made worse by the fact that the incorrect definitions, which vitiated the requisite mens rea element, were placed before the jury in a legal document signed by the defendant's own attorney. Although our dissenting colleagues emphasize that the full jury note asked two questions—whether the jury was \"bound by the parties['] stipulation and procurement is the[ ] same as promoting\"—this merely reflects that the jury was confused about both the stipulation's impact on the required mens rea element and about a separate element of the crime of promoting a sexual performance by a child. Therefore, even if this series of related errors regarding the stipulation is considered an \"isolated\" error ( People v Henry , 95 NY2d at 565), it was sufficiently egregious to deprive the defendant of his constitutional right to the effective assistance of counsel and, thus, he is entitled to a new trial ( see People v Turner , 5 NY3d at 480-481; People v Goondall , 173 AD3d at 899). [*4] Defense counsel's error in entering into the stipulation was further compounded by the Supreme Court's erroneous refusal to provide the jury with a clarifying instruction that its earlier legal instructions, which included the mens rea element of knowing possession, were controlling. In response to the jury's note inquiring as to whether the jury was \"bound by the parties['] stipulation,\" defense counsel requested that the court clarify for the jury that its legal instructions on the elements of the charged crimes were controlling. The court refused to provide such a clarification and, instead, gave the jury a confusing instruction that \"[a] stipulation is an agreement between the two parties that a certain fact is not an issue\" and that \"[t]he parties have agreed and stipulated to what you've read and seen.\" The court's response was not meaningful ( see People v O'Rama , 78 NY2d 270, 276 [1991]), as it improperly left the jury with the impression they were bound by the erroneous recitation of the elements of the charged offenses set forth in the stipulation, which eliminated the requisite element of knowledge. The court should have explained that its instructions on the elements of the crimes were controlling and clarified that possession alone was insufficient to support a guilty verdict for either promoting a sexual performance by a child or possessing a sexual performance by a child. Since this error bore on an element of the crimes charged, the defendant was clearly prejudiced by it ( see People v Manzano , 202 AD3d 994 [2022]; see also People v Lourido , 70 NY2d at 435). Since there must be a new trial, we note that the prosecutor engaged in improper conduct during summation ( see People v Vera , 222 AD3d 1003 , 1006 [2023]). \"[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits\" ( People v Ashwal , 39 NY2d 105, 109 [1976]; see People v Drago , 207 AD3d 559 , 561 [2022]). Here, during the People's summation, the prosecutor said to the jury, in pertinent part, \"the defendant . . . never emphatically denied that he didn't have [the videos and images]. He never, like, when . . . [a detective is] telling him, well, I found it on your cell phone, he never said no, no, no, no, no, it's not there, it can't be there, there is no way I would have it there, you know? . . . [w]hat else did the defendant not tell you? There were a lot of things he did not admit.\" These remarks improperly \"convey[ed] to the jury the impression that the defendant knew he was guilty or he would have explained his actions\" ( People v Kent , 125 AD2d 590, 591 [1986]; see People v McArthur , 101 AD3d 752 , 753 [2012]; People v Bailey , 159 AD2d 628, 629 [1990]), and the prejudicial effect of these improper remarks was not cured by a corrective instruction to the jury ( see People v Torres , 223 AD2d 741, 742 [1996]). In light of our determination, we need not address the defendant's remaining contention. Miller, Voutsinas and Wan, JJ., concur. Brathwaite Nelson, J.P., dissents, and votes to affirm the judgment, with the following memorandum, in which Dowling, J., concurs: I agree that the evidence was legally sufficient to establish the defendant's guilt of all counts beyond a reasonable doubt and that the verdict of guilt was not against the weight of the credible evidence. My colleagues in the panel majority, however, confuse a stipulation of facts by the parties with the Supreme Court's instruction of the law to the jury. The jury was not presented with conflicting instructions on the law. The court accurately instructed the jury on the elements of the crimes charged and accurately instructed the jury that a stipulation is an agreement between the parties that a certain fact is not an issue in the trial. Therefore, I cannot agree with the panel majority that the court erred in its instruction to the jury. Furthermore, the record shows that defense counsel's decision to stipulate to certain facts, including that whoever possessed the subject images knew the character and content of the images and knowingly had them in his or her possession, was part of a failed trial strategy that focused on whether the defendant was the person who had possessed the images. Pursuant to the evidence submitted at trial and the court's proper instruction to the jury, mere possession of the laptop was not enough to establish possession. The jury was required to infer from the circumstantial evidence that the defendant had used the laptop as a conduit to store the images on an external USB drive. The defense theory was that the defendant had never possessed the images and that he had come into possession of the laptop well after it had been used [*5] to download and share the images depicting child sexual abuse. Thus, knowledge of the nature of the images was not a disputed fact, and defense counsel's stipulation to such facts was not \"true ineffectiveness\" ( People v Baldi , 54 NY2d 137, 146 [1981]). I therefore respectfully dissent and would affirm the judgment. A detective in the Special Crimes Task Force focusing on child exploitation cases testified that in January 2017, he conducted a search of the Ares network, an online peer-to-peer sharing platform. The detective found and was able to download 19 videos depicting child sexual abuse that were being shared onto the network from a particular IP address in Queens. The videos depicted children ages 3 to 12, naked and holding or being penetrated by adult penises. Six months later, on July 27, 2017, police officers executed a search warrant at a house associated with the IP address, which was a three-family house with a basement and two upper stories. The house had been divided into 11 bedrooms, rented to tenants, and had shared kitchens and bathrooms. Among other devices, officers seized a laptop in a second-floor bedroom that was rented by the defendant and a roommate. The roommate identified the laptop as belonging to the defendant. Upon a digital forensic examination of the laptop, no images or videos of child sexual abuse were found. However, there were indications or artifacts that an Ares program had been used on the laptop with the username from which the 19 videos had been downloaded. More specifically, there was an indication that an external USB drive had been attached to the laptop, using the laptop as a conduit to connect to the Ares network, and that images received from the Ares program were stored on the USB drive. Upon further forensic examination, more than 30 images depicting child sexual abuse were found in the deleted or unallocated space on the laptop. The images showed female children between the ages of two and nine, many naked and holding or being penetrated by penises. These images had been viewable on the laptop in the past but at the time of the search, they could only be viewed using forensic software. No USB drive was recovered from the defendant's bedroom. Pictures of the defendant and documents containing the defendant's resume were found on the desktop of the laptop. The defendant, who was not home at the time of the police officers' search of the house, was later interviewed by detectives. The defendant told the detectives that he fixes computers and had found the laptop two to three months earlier in the garbage outside of the house where he lived. The laptop was already connected to the Wi-Fi of the house, which caused the defendant to believe that it had belonged to someone who had lived there and moved away. The defendant denied ever having used the Ares program and denied having the password to the Wi-Fi of the house. He told the detectives that he used the laptop to listen to music with the other residents of the house. The defendant was charged with 19 counts of promoting a sexual performance by a child and 49 counts of possessing a sexual performance by a child, among other things. In her opening statement, defense counsel told the jury that the evidence would show that the defendant acquired the laptop in May or early June, several months after the videos allegedly were shared on the Ares network, that the images on the laptop existed in hidden space on the laptop, that no images were found on the laptop itself, and that the police officers searched the defendant's bedroom and his other electronic devices and found no other evidence connecting the defendant to the images or videos. Defense counsel further told the jury that the evidence would show that the laptop was not passcode protected, that the laptop had users other than the defendant and was kept in the open, that 24 other people lived at the house in January 2017, and that there were common spaces for the people who lived there to meet and hang out. Defense counsel presented the testimony of an expert in digital forensics analysis, who testified that the laptop was not passcode protected. The parties stipulated to certain facts, including that each of the 19 videos that was downloaded in January 2017, depicted and promoted a performance, which included sexual conduct by a child less than 17 years of age, and that whoever possessed the videos promoted such a performance with the knowledge of the character and content of such videos. The parties also stipulated that whoever possessed the videos and images knowingly had in his or her possession or [*6] control, or knowingly accessed with intent to view, a performance, which included sexual conduct by a child less than 16 years of age. At the close of the People's case, defense counsel moved to dismiss all counts, contending that the central issue in the case was identity and that the People had failed to establish that the defendant was the person who shared the videos on the Ares network in January 2017, as the People's evidence established that the defendant came into possession of the laptop several months later. Defense counsel renewed the motion at the close of the evidence, contending again that identity was the key issue in the case, that approximately 24 people lived in the house, and that no evidence had been presented establishing that the defendant was the exclusive owner or user of the laptop in January 2017, or establishing when the images were deleted and came into the unallocated space on the laptop. Defense counsel contended that there was an absence of direct evidence and that to be legally sufficient, the circumstantial evidence would need, at a minimum, to establish when the images came into the unallocated space on the laptop and that the defendant was in exclusive possession of the laptop at that time, but no such evidence had been presented. Defense counsel further contended that at the time that the police officers conducted the search, 20 devices were seized, but the laptop was the only one that was analyzed. The People responded that it was their position that the defendant had been untruthful in his statements to the detectives and that he had been in exclusive possession of the laptop since August 2016, and kept it locked in his room. The defendant's motions were denied. In summation, defense counsel adhered to the defense theory of the case that the defendant did not possess the laptop at the relevant time with regard to the videos and that no images were actually found on the laptop. Defense counsel contended that the evidence established that the defendant did not come into possession of the laptop until several months after the videos were shared, that it was undisputed that the Ares program was not installed on the laptop, but was on a USB drive not in the defendant's possession, that no images were found on the laptop, and that only some artifacts indicating that the laptop had been used as a conduit for the USB drive to connect to the Ares network. Defense counsel further contended that the police officers failed to conduct a forensic analysis of the other devices found in the house belonging to the other residents and did not search the other rooms in the house for a USB drive, which was the critical piece of evidence in the case. With respect to the images that were found in the unallocated space of the laptop, defense counsel argued that they existed in a thumbnail cache only and were accessed at a time when a USB drive was connected to the laptop. Defense counsel contended that a person could knowingly possess the images only by using a USB device because they did not exist on the laptop, and there was an eight-year span in which the subject 30 images could have been created in the unallocated space. Defense counsel further contended that there was no evidence that the laptop was the device that was used to share the 19 videos in January 2017, and in the absence of a USB device, it was pure speculation that this laptop was the conduit used at that time. The Supreme Court charged the jury consistent with the Penal Law that \"a person is guilty of promoting a sexual performance by a child when knowing the character and content thereof he produces, directs, [or] promotes any performance which includes sexual conduct by a child less than 17 years of age\" ( see Penal Law § 263.15), and that promote means to procure, give, provide, lend, transfer, or distribute, among other possibilities ( see Penal Law § 263.00 [5]). The court instructed the jury that in order to find the defendant guilty, it would need to find that the People had proven beyond a reasonable doubt that the defendant produced, directed, or promoted such a performance and that he knew the character and the content of such performance. The Supreme Court also instructed the jury consistent with the Penal Law that \"a person is guilty of possessing a sexual performance by a child when knowing the character and the content, he knowingly has in his possession or control or knowingly accesses with the intent to view any performance which includes sexual conduct by a child less than 16 years of age\" ( see Penal Law § 263.16). The court further instructed the jury that \"[i]mages stored in cache of the computer may constitute evidence of images that were previously viewed, however, viewing computer images of a sexual performance of a child on a computer does not by itself constitute possession or control of such images. Rather, such affirmative acts such as printing, saving, downloading or the like is [*7] required to show [that] the defendant, in fact, exercised dominion or control over images on his screen.\" During deliberations, the jury asked for a copy of the parties' stipulation. At that time, defense counsel, among other things, asked for \"curative action\" to alter the parties' stipulation of the facts with respect to possessing a sexual performance by a child so that the stipulation would read that \"whoever knowingly possessed the videos and images knowingly had them in his possession and control\" (emphasis added). The People opposed the application on the ground that the stipulation had been thoroughly discussed and reflected the parties' agreement regarding the facts. The Supreme Court denied the application, noting that the written stipulation had been worked out, signed, and placed into evidence, and the court would not alter the evidence when the jury was asking to see it. The jury sent a subsequent note asking whether they were \"bound by the parties['] stipulation and procurement is the[ ] same as promoting.\" Defense counsel contended that the jury was confused on the element on knowing possession and again sought to alter the parties' stipulation and sought a mistrial when the application was denied. The Supreme Court instructed the jury that \"[a] stipulation is an agreement between the two parties that a certain fact is not an issue. The parties have agreed and stipulated to what you've read and seen.\" The court then repeated the definition of promoting a sexual performance by a child, which was consistent with the Penal Law. The jury convicted the defendant of 19 counts of promoting a sexual performance by a child and 49 counts of possessing a sexual performance by a child. Contrary to the conclusion of the panel majority, the jury was not presented with contradictory instructions on the essential elements of the crimes charged. The suggestion that the parties' stipulation was an instruction on the law is incorrect. The Supreme Court correctly instructed the jury that the stipulation was merely an agreement between the parties that a certain fact was not at issue. \"[A] stipulation is an agreement, admission, or concession made in a judicial proceeding by the parties thereto or their attorneys, in respect of some matter incident to the proceeding, for the purpose, ordinarily, of avoiding delay, trouble and expense\" ( People v White , 73 NY2d 468, 476 [1989] [alteration and internal quotation marks omitted]). It is solely the court's function to instruct the jury on the law ( see CPL 300.10 [2]). \"A stipulation does not remove an element of a crime from a statute[, and] every element has to be charged and submitted to the jury\" ( People v Hills , 140 AD2d 71, 79 [1988]). Here, it is not disputed that the Supreme Court's charge to the jury correctly conveyed the elements of the crimes charged. As repeatedly contended by defense counsel during trial, the crux of the case was the identity of the person who shared the 19 videos onto the Ares network from the IP address in January 2017, and, whether the same or different person, the identity of the person who possessed the USB drive that held the Ares program and the files that were captured in cache in the unallocated space on the laptop at some unidentified time prior to the July 2017 seizure of the laptop. In order to narrow the focus of the trial, the parties stipulated to the content of the 19 video images and the 30 cached images and stipulated to the facts that, in this case, whoever possessed the videos promoted them with knowledge of their character and content and whoever possessed the videos and images knowingly did so with the intent to view them. To the extent that the defendant contends that the court should have allowed him to reopen the case during jury deliberations so as to allow him to stipulate to a different set of facts, this contention is without merit ( see People v Ford , 219 AD3d 501 [2023]; People v McCloud , 305 AD2d 428 [2003]). Moreover, notwithstanding defense counsel's doubts expressed during jury deliberations, the parties' stipulation to certain facts did not allow the jury to find that whoever possessed the laptop knowingly possessed the videos and images. As contended by defense counsel to the jury, the 19 videos that were uploaded from an Ares account at the IP address in January 2017 were not found on the laptop, nor was any direct evidence presented connecting the username from which the videos were shared to the laptop. In order to find the defendant guilty of the counts of promoting a sexual performance by a child, the jury had to infer from the circumstantial evidence that the defendant was the person who shared the videos on the Ares network from the specific [*8] username in January 2017. There was no factual scenario presented to the jury in which the defendant's guilt of those counts was established merely by possessing the laptop. Similarly, because the videos were not on the laptop when it was seized in July 2017, the defendant's guilt of the 19 counts of possessing a sexual performance by a child relating to those videos could not have turned on his mere possession of the laptop. As to the remaining 30 counts of possessing a sexual performance by a child, which were predicated on the cached images in the unallocated space of the laptop, the Supreme Court instructed the jury that the mere existence of those images on a computer did not constitute possession within the meaning of the law and that even viewing the images on the laptop would not constitute possession or control of such images. Rather, as the court instructed, the jury was required to find that the defendant engaged in an affirmative act \"such as printing, saving, downloading or the like.\" \"A jury is assumed to follow the instructions of the court\" ( People v Stone , 29 NY3d 166 , 171 [2017]). Thus, contrary to the conclusion of the panel majority, notwithstanding defense counsel's stipulation to the fact that whoever possessed the images did so knowing their character and content, the mere possession of the laptop, even with the cached images thereon, did not establish guilt of possessing a sexual performance by a child. The panel majority's speculation that the jury was confused on the element of knowledge is not supported by the record. The full jury note asked whether the jury was \"bound by the parties['] stipulation and procurement is the[ ] same as promoting.\" The jury question related to the element of \"promoting\" with respect to the counts of promoting a sexual performance by a child, not \"possession\" with respect to the counts of possessing a sexual performance by a child. In response to the jury's note, the Supreme Court properly clarified that a stipulation is an agreement relating to the facts, and the court correctly instructed the jury on the element of \"promoting\" with respect to the 19 counts of promoting a sexual performance by a child. The jury expressed no confusion thereafter and did not seek any instruction with respect to knowing possession. Contrary to the conclusion of the panel majority, I find no error in the court's charge to the jury. The defendant's contention that he was deprived of the effective assistance of counsel is also without merit. In order to establish an ineffective assistance of counsel claim under the Sixth Amendment to the United States Constitution, a defendant must demonstrate that trial counsel \"committed errors so egregious that he or she did not function as counsel within the meaning of the United States Constitution,\" and that the deficient performance \"actually prejudiced the defendant\" ( People v Gross , 26 NY3d 689 , 693 [2016]; see Strickland v Washington , 466 US 668, 688, 694 [1984]). \"New York's constitutional requirement of effective assistance of counsel is met when 'the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation' \" ( People v Gross , 26 NY3d at 693, quoting People v Benevento , 91 NY2d 708, 712 [1998]). \"Under both standards, 'the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy' \" ( People v Honghirun , 29 NY3d 284 , 289 [2017] [internal quotation marks omitted], quoting Strickland v Washington , 466 US at 689). \"There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way\" ( Strickland v Washington , 466 US at 689). The court \"must be careful not to second-guess counsel, or assess counsel's performance with the clarity of hindsight, effectively substituting its own judgment of the best approach to a given case\" ( People v Nicholson , 26 NY3d 813 , 831 [2016] [internal quotation marks omitted]; see People v Benevento , 91 NY2d at 712). \"[M]ere losing tactics\" should not be confused with \"true ineffectiveness\" ( People v Baldi , 54 NY2d at 146; see People v Benevento , 91 NY2d at 712). \"The test is reasonable competence, not perfect representation\" ( People v Nicholson , 26 NY3d at 831 [internal quotation marks omitted]; see People v Honghirun , 29 NY3d at 291). Here, the defendant failed to establish that he was denied the effective assistance of counsel by defense counsel's entering into the stipulation. Notably, by stipulating to the content of the 19 videos and 30 images, defense counsel intended to shield the jury from hearing the details of the child sexual abuse perpetrated in each video and image. In addition, the record plainly demonstrates that the theory of the defense was that the defendant never possessed any of the videos or the images, not that he possessed them without knowing the nature of their content. Since none [*9] of the videos was found on the laptop and the images existed only in the unallocated space, which, pursuant to the Supreme Court's instruction to the jury, was insufficient to establish possession within the meaning of the Penal Law, defense counsel's strategy was reasonable. Defense counsel's stipulation to the facts that whoever possessed the 19 videos promoted a performance with knowledge of the character and content of the videos and that whoever possessed the videos and images knowingly had in his or her possession a performance which included sexual conduct by a child less than 16 years of age, was consistent with the defense theory that the defendant never possessed the videos or images. In light of the evidence presented at trial and the court's instruction to the jury regarding possession, the defense strategy was reasonable and \"counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective\" ( People v Benevento , 91 NY2d at 712; see People v Honghirun , 29 NY3d at 290). The defendant contends that he was deprived of a fair trial as a result of certain remarks made by the prosecutor during summation. The challenged remarks either constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom or were not so flagrant or pervasive as to have deprived the defendant of a fair trial ( see People v Green , 223 AD3d 914 , 915 [2024]; People v Ingrassia , 207 AD3d 751 , 752 [2022]). Moreover, the evidence of the defendant's guilt was overwhelming, and there is no significant probability that any improper remarks made by the prosecutor during summation contributed to the defendant's convictions ( see People v Crimmins , 36 NY2d 230, 241-242 [1975]; People v Green , 223 AD3d at 915). The defendant's remaining contention is without merit. I therefore respectfully dissent and would affirm the judgment of conviction."
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"value": "Sharply divided panel reversed child porn convictions and ordered a new\ntrial, primarily because defense counsel agreed to a stipulation containing\ndefinitions of the crimes charged that eliminated the requisite mens rea\nelement. Counsel did not object to the stipulation being given to the jury\nand and did not object to the disputed language in the stipulation until after\nthe jury began its deliberations. As a result, the jury was left \"on its own\"\nto choose between conflicting definitions of the crimes—one set that\nincluded the requisite mens rea element and one set that did not. "
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2024.06384 | [
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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 Rufus 2024 NY Slip Op 06384 Decided on December 19, 2024 Court of Appeals Rivera, 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. 120 [*1] The People & c., Respondent, v Parris J. Rufus, Appellant. Edward L. Fiandach, for appellant. Amy N. Walendziak, for respondent. RIVERA , J. Defendant challenges his conviction of driving while intoxicated, claiming that the vehicular stop that led to his arrest was unlawful. Defendant also claims that the trial evidence was legally insufficient to support the court's guilty verdict on that count and weighed in favor of acquittal. Based on the totality of the circumstances, we conclude that the officers had probable cause to stop defendant after they observed his vehicle cross the fog line three times within a short distance and time. [FN1] We also conclude that defendant's legal insufficiency claim is without merit and his weight of the evidence claim is unreviewable ( see People v Bleakley , 69 NY2d 490, 495 [1987]; see also People v Danielson , 9 NY3d 342 , 349 [2007]). Therefore, we affirm the Appellate Division. *** Defendant was charged and convicted following a nonjury trial of felony driving while intoxicated under Vehicle and Traffic Law (\"VTL\") § 1192 (3). Before trial, defendant moved to suppress evidence of his intoxication obtained during the car stop, arguing that the stop was unsupported by probable cause. The evidence adduced at the suppression hearing showed that defendant was driving in the right-hand lane of a three-lane interstate highway at approximately 2 AM on a Sunday, with two State Troopers, Tiwana and Statt, behind him in a patrol car. The [*2] troopers testified that they observed the tires on the right side of defendant's vehicle cross the solid white fog line onto the right shoulder of the road three times within a tenth of a mile. Defendant was traveling within the speed limit. Trooper Tiwana testified that he directed defendant to pull over. After defendant complied, Trooper Tiwana approached on the driver's side and observed that defendant was the sole occupant. He then informed defendant that he was pulling him over for swerving over the line, asked him where he was traveling, and requested his driver's license and vehicle registration. Defendant handed over his license but gave the trooper the plastic backing of an air freshener instead of his registration, which he provided later during the encounter. Trooper Tiwana further testified that during these initial interactions, he smelled a strong odor of alcohol, noted that defendant's speech was slurred and illogical, and observed that defendant had bloodshot, glassy eyes and droopy eyelids. According to the trooper, defendant claimed that \"he was swerving because he saw [the] patrol car approaching from the rear.\" Trooper Tiwana then asked defendant to exit the vehicle. The trooper observed that, as defendant was getting out, he grabbed the car door for balance before walking slowly toward the front of the car. Trooper Tiwana then administered four sobriety tests, the results of which led him to conclude that defendant was intoxicated. He then placed defendant under arrest and transported him to a local police station. During the ride, defendant volunteered that he had been drinking, although, before the arrest, he had denied consuming alcohol. At the station, defendant refused to take a chemical breath test. The court denied defendant's motion to suppress, crediting the troopers' testimony that they observed defendant's vehicle cross the fog line three times within a tenth of mile, which supported their reasonable belief that defendant had violated VTL § 1128 (a). At defendant's bench trial, the troopers testified consistently with their suppression hearing testimonies, and the court admitted the police report of defendant's refusal to submit to a chemical test. Based on the record evidence, the court found defendant guilty of driving while intoxicated, in violation of VTL § 1192 (3), and later sentenced him. [FN2] A divided Appellate Division affirmed, concluding that the record supported the suppression court's determination that Trooper Tiwana had probable cause to believe that defendant violated VTL § 1128 (a) before stopping his vehicle because he had observed the vehicle \"swerve and cross over the white fog line three times within a tenth of a mile\" (220 AD3d 1162 [4th Dept 2023]). The majority also rejected defendant's remaining claims. The dissenting justices would have reversed the conviction solely on the lack of probable cause because, in their view, there was no evidence of defendant's unsafe driving ( see id. at 1163-1167 [Curran and Ogden, JJ., dissenting]). One of the dissenting justices granted defendant leave to appeal. As relevant here, an automobile stop is lawful when it is \" 'based on probable cause [to believe] that a driver has committed a traffic violation' \" ( People v Hinshaw , 35 NY3d 427 , 430 [2020], quoting People v Robinson , 97 NY2d 341, 350 [2001]). Here, the troopers stopped defendant based on an alleged violation of VTL § 1128 (a). That section provides: \"[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.\" Whether a driver has violated VTL § 1128 (a) is a fact-specific determination, which depends upon what is \"practicable\" under the circumstances and what a driver has \"ascertained.\" Thus, whether conduct observed by an officer amounts to a probable violation of VTL § 1128 (a) is a determination based on the totality of the circumstances. Defendant's claim that the troopers lacked a lawful basis to stop him because he was not swerving or otherwise driving erratically is a gross mischaracterization of the record and is contradicted by his own statement. The hearing court credited Trooper Tiwana's testimony that he stopped defendant for swerving over the fog line and that defendant told him that he swerved because he saw the patrol car behind him. We find unpersuasive defendant's effort to minimize his conduct as a brief, subtle lane departure, commonly observed on the road and generally accepted as within the bounds of the law. The troopers observed signs of alarming driving. The record shows that defendant did not merely \"touch\" the fog line or barely cross over it once while otherwise abiding by all rules of the road. Rather, both troopers testified that defendant crossed the fog line three times within seconds and a short distance [*3] of a tenth of a mile. Thus, contrary to the defendant's suggestion his failure to stay in his lane was not a de minimis diversion. When a driver swerves over the fog line repeatedly, in quick succession, they have failed to \"drive[ ] as nearly as practicable entirely within a single lane\" in violation of VTL § 1128 (a) ( see e.g. Schoonmaker v New York State Dept. of Motor Vehicles , 33 NY3d 926 , 928 [2019] [testimony that vehicle \"ma(de) an erratic movement off the right side of the road, crossing the fog line and moving off the shoulder with the vehicle's right front tire\" provided substantial evidence that stop was lawful under VTL § 1128 (a)]; People v Tandle , 71 AD3d 1176 , 1177, 1178 [2d Dept 2010]; People v Parris , 26 AD3d 393 , 394 [2d Dept 2006]; cf. People v Davis , 58 AD3d 896, 898 [3d Dept 2009] [police officer's testimony that driver had made \"brief contacts with the fog line,\" but not that driver was, for example, \"weaving, driving erratically or even that he drove onto the shoulder\" was insufficient to support traffic stop under VTL § 1128 (a)]). On these facts, the troopers' observations, which were credited by the suppression court, established probable cause for the traffic stop. Therefore, the court properly denied the motion to suppress. Defendant's challenges based on the sufficiency and weight of the evidence do not warrant reversal. \"A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, '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' \" ( Danielson , 9 NY3d at 349, quoting People v Acosta, 80 NY2d 665, 672 [1993]). Section 1192 (3) of the VTL states that \"[n]o person shall operate a motor vehicle while in an intoxicated condition.\" Trooper Tiwana testified at trial that he observed defendant bearing tell-tale physical signs of intoxication: bloodshot and glassy eyes; slurred and illogical speech; and conduct incongruous with that of a sober driver, such as providing a plastic air freshener wrapper instead of the vehicle registration card. These signs were confirmed by the results of defendant's field sobriety tests and by defendant's admission that he had been drinking. That evidence supports defendant's conviction of driving while intoxicated, in violation of VTL § 1192 (3) ( cf. People v Cruz , 48 NY2d 419, 427 [1979]). Defendant's weight of the evidence challenge is unreviewable because where, as here, the Appellate Division has properly considered such a challenge, \"this Court is without authority to review the Appellate Division's . . . determination\" ( Danielson , 9 NY3d at 349; cf. People v Kancharla , 23 NY3d 294 , 306 [2014]). Accordingly, the order of the Appellate Division should be affirmed. Order affirmed. Opinion by Judge Rivera. Chief Judge Wilson and Judges Garcia, Singas, Cannataro, Troutman and Halligan concur. Decided December 19, 2024 Footnotes Footnote 1: The \"fog line\" is the solid white line that runs between the roadway and the shoulder. Footnote 2: The court dismissed the second count of the indictment, refusal to take a breath test in violation of VTL § 1194 (1) (B)."
},
{
"from": "gpt",
"value": "Troopers' testimony that defendant swerved over the fog line 3 times\nwithin in a short distance and time was credited by the suppression court\nand established probable cause for the traffic stop [see Vehicle and Traffic\nLaw § 1128 (a)]."
}
]
|
2024.03319 | [
{
"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 Thomas 2024 NY Slip Op 03319 [42 NY3d 236] June 18, 2024 Cannataro, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 16, 2024 [*1] The People of the State of New York, Respondent, v Kevin L. Thomas, Appellant. Argued April 17, 2024; decided June 18, 2024 People v Thomas , 211 AD3d 1326 , reversed. {**42 NY3d at 238} OPINION OF THE COURT Cannataro, J. The question presented by this appeal is whether the courts below erred in denying defendant's motion to suppress a large quantity of heroin recovered from the backseat of his car during a warrantless search by defendant's parole officer, who had been contacted by police in the course of a traffic stop. Because the lower courts applied an incorrect legal standard in analyzing whether the traffic stop was unreasonably prolonged, we reverse and remit to County Court for further proceedings. The testimony presented at the suppression hearing established that defendant, who was on lifetime parole for prior narcotics offenses, was observed driving outside his county of residence by an off-duty police officer who recognized defendant's distinctive vehicle and license plate. The off-duty officer, who was familiar with defendant, suspected that defendant was in violation of a condition of his parole requiring him to stay within a certain geographic area and so contacted an on-duty officer in the vicinity of defendant's residence. The on-duty officer knew defendant to be on parole, and suspected that he was in violation of his parole conditions because he was outside of the county and out after the standard parole curfew time. Based on these facts and defendant's history, he believed defendant was \"possibly transporting drugs.\" The officer and his partner waited for defendant to return to the jurisdiction at a location where they could observe him exiting the highway. When defendant exited the highway, the officers followed defendant's vehicle, observed him commit a traffic infraction by failing to come to a complete stop at a stop sign and initiated a traffic stop at about 9:20 p.m. Defendant had pulled [*2] into his driveway by the time he stopped his vehicle and the ensuing encounter was captured on one officer's body camera. Defendant readily admitted committing the traffic infraction, claiming he was distracted because he was talking on the phone, and provided his driver's license, which the officer confirmed was valid. The officer then questioned defendant about where he was coming from and whether he was in violation of his curfew. Defendant provided a series of inconsistent responses that the officer knew to be false. Defendant also {**42 NY3d at 239} appeared nervous and, when asked, withheld consent to search his vehicle. The officers repeatedly stated that if he did not give consent, they would call his parole officer to search the car. The police attempted to have a canine unit come to the scene to conduct a sniff of the exterior of the vehicle, but none was available. Then, at about 9:40 p.m., the police contacted defendant's parole officer to advise him of what had transpired up to that point. The parole officer indicated that he would report to the scene to investigate. Defendant was frisked, his personal belongings were removed and he was placed, without handcuffs, in the back of the patrol car for officer safety purposes to await his parole officer's arrival. Upon arrival, defendant refused to answer his parole officer's questions, despite a parole condition requiring him to do so. The parole officer searched defendant's vehicle and discovered 2,000 glassines of heroin inside a shoebox. In support of his motion to suppress, defendant argued that the People failed to prove that the officers had the requisite level of suspicion to extend the traffic stop after its initial basis—the traffic infraction—was exhausted, asserting that a traffic stop cannot be extended for the purpose of investigating an unrelated crime for which the officer lacked reasonable suspicion. [FN1] He also argued that the parole officer's warrantless search of his vehicle was not justified, as the parole officer was acting as an agent of the police. County Court denied the motion, finding that the initial stop was justified by the police officer's observation of the traffic infraction. The court further found that, under the totality of the circumstances, including defendant's parole status and the false responses he gave to the police officers' questions, the police had a founded suspicion of criminality justifying the continued detention of defendant in order to contact his parole officer. The court went on to find that, based on the credible evidence of defendant's parole violations, the ensuing search of the vehicle by the parole officer was rationally and reasonably related to that officer's parole duties. Defendant was convicted, upon his guilty plea, of criminal possession of a controlled substance in the third degree. The {**42 NY3d at 240} Appellate Division affirmed, concluding that suppression was properly denied as the traffic stop, which was justified at its inception, was not unlawfully prolonged (211 AD3d 1326 [3d Dept 2022]). The Court opined that defendant's inconsistent and false responses, considered with the apparent violations of the conditions of his parole and his nervous demeanor, provided a founded suspicion of criminality, allowing the officers to extend the stop to request consent to search or await a canine sniff. The Court further concluded that, once the police officers learned that the canine unit was unavailable, it was reasonable for them to contact defendant's parole officer and detain defendant pending the parole officer's arrival. Finally, the Court determined that the subsequent warrantless search of the vehicle was substantially related to the performance of the parole officer's duty in the circumstances. Two Justices dissented and would have granted suppression, concluding that defendant was detained beyond what was reasonable under the circumstances because the police officers lacked a founded suspicion that criminality was afoot after the justification for the traffic stop had been exhausted. An Appellate Division Justice granted defendant leave to appeal (39 NY3d 1081 [2023]). The proper standard for detaining an individual beyond \"the time reasonably required\" to complete a traffic stop is reasonable suspicion ( Rodriguez v United States , 575 US 348, 354-355 [2015] [internal quotation marks omitted]; see People v Banks , 85 NY2d 558, 562 [1995]). Given that a traffic stop is a \"limited seizure\" of the occupants of a vehicle, \"[f]or a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance\" ( Banks , 85 NY2d at 562). A \"continued involuntary detention of [a] defendant . . . constitute[s] a seizure in violation of their constitutional rights, unless circumstances coming to [the officer's] attention following the initial stop furnish[ ] . . . reasonable suspicion that they were engaged in criminal activity\" ( id. [emphasis added]). Likewise, the United States Supreme Court has held that \"[a] seizure justified only by a police-observed traffic violation . . . become[s] unlawful if it is prolonged beyond the time [*3] reasonably required to complete th[e] mission of issuing a ticket for the violation\" ( Rodriguez , 575 US at 350-351 [internal quotation marks and citation omitted]). In this {**42 NY3d at 241} vein, although that \"mission\" encompasses \" 'ordinary inquiries incident to [the traffic] stop,' \" it does not include additional measures designed to detect evidence of criminality (575 US at 355, quoting Illinois v Caballes , 543 US 405, 408 [2005]). Thus, an otherwise lawful traffic stop may not be prolonged \"absent the reasonable suspicion ordinarily demanded to justify detaining an individual\" (575 US at 355). Here, there is record support for the affirmed finding that the traffic stop was justified at its inception, based upon the police officer's observation that defendant committed a traffic infraction ( see People v Hinshaw , 35 NY3d 427 , 430 [2020]). However, the courts below evaluated whether the traffic stop was prolonged beyond the time reasonably required for its completion under the founded suspicion standard applicable to the common-law right to inquire ( see People v De Bour , 40 NY2d 210, 223 [1976]), a lesser standard than the reasonable suspicion necessary to prolong a traffic stop. As a result, remittal is necessary to allow for consideration of this issue under the proper standard. [FN2] We note that although \"a parolee does 'not surrender [their] constitutional rights against unreasonable searches and seizures' merely by virtue of being on parole,\" \" 'in any evaluation of the reasonableness of a particular search or seizure,' whether undertaken by parole or police officers, 'the fact of defendant's status as a parolee is always relevant and may be critical' \" ( People v McMillan , 29 NY3d 145 , 148-149 [2017], quoting People v Huntley , 43 NY2d 175, 181 [1977]). The issue is whether, under the totality of the circumstances, including {**42 NY3d at 242} defendant's lifetime parole status and the officers' awareness that he was likely in violation of multiple conditions of his parole, \"reasonable suspicion of criminal activity justified detaining [defendant] beyond completion of the traffic infraction investigation\" ( Rodriguez , 575 US at 358). As stated, \"[a] seizure justified only by a police-observed traffic violation . . . become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation\" ( id. at 350-351 [internal quotation marks and citation omitted]). Accordingly, the order of the Appellate Division should be reversed and the matter remitted to County Court for further proceedings in accordance with this opinion. Rivera, J. (dissenting). The record on appeal establishes that the officers had a lawful basis to stop defendant Kevin Thomas for a traffic violation, and reasonable suspicion that he had engaged in criminal activity, thereby justifying his prolonged detention until his parole officer arrived and searched defendant's vehicle. Therefore, I would affirm the Appellate Division rather than remit for further proceedings. I. I agree with the majority's summary of the facts and procedural history ( see majority op at 238-240). I also agree with the majority's articulation of the standard applicable to defendant's motion to suppress ( see id. at 240-241). A traffic stop is \"[l]ike a Terry stop\" ( Rodriguez v United States , 575 US 348, 354 [2015]), where \"an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop\" and \"the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time\" ( Florida v Royer , 460 US 491, 500 [1983]). Thus, \"[f]or a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance,\" and a \"continued involuntary detention of [a] defendant . . . constitute[s] a seizure in violation of their constitutional rights, unless circumstances coming to [the officer's] attention following the initial stop furnished . . . reasonable suspicion that they were engaged in criminal activity\" ( People v Banks , 85 NY2d 558, 562 [1995]; see also {**42 NY3d at 243} Rodriguez , 575 US at 355). Although, as the majority states, the Appellate Division \"applied an incorrect legal standard\" in affirming the denial of defendant's motion to suppress (majority op at 238), I conclude that under the unique circumstances presented here, remittal is unwarranted because the facts are undisputed, the legal issue is resolved by application of established precedent and defendant's claim is meritless. Nothing bars final resolution in this Court and thus the prudent course is to preserve judicial resources and affirm the Appellate Division. [*4] II. As a threshold matter, this appeal falls outside the LaFontaine / Concepcion rule that the intermediate appellate court—and, in turn, we—may not review issues \" 'either decided in an appellant's favor, or not ruled upon, by the trial court' \" ( People v Concepcion , 17 NY3d 192 , 195 [2011], quoting People v LaFontaine , 92 NY2d 470, 474 [1998]). Members of this Court have roundly criticized the rule ( see Concepcion , 17 NY3d at 201 [Smith, J., joined by Pigott, J., dissenting] [\" LaFontaine . . . was a mistake, and a serious one . . . I had hoped that this would provide the occasion for giving that case a decent burial, but the majority ill-advisedly resurrects it\"]; People v Ingram , 18 NY3d 948 , 949 [2012, Pigott, J., joined by Smith, J., dissenting] [\"For the reasons that Judge Smith stated in his dissent in . . . Concepcion . . . , I remain convinced that . . . LaFontaine . . . should be overruled\"]). And while the rule survives, we have, over recent years, narrowly construed it to mitigate nonsensical results ( see People v Nicholson , 26 NY3d 813 , 817 [2016] [\"(T)he Appellate Division does not exceed its statutory authority or run afoul of our decisions in . . . LaFontaine . . . and . . . Concepcion . . . when it relies on the record to discern the unarticulated predicate for the trial court's evidentiary ruling\"]; People v Garrett , 23 NY3d 878 , 885 n 2 [2014] [distinguishing between \"separate alternative grounds for decision\" which the LaFontaine rule covers and components of a \"single multipronged legal ruling\" which it does not]; id. at 899 [Smith, J., concurring] [endorsing the Garrett \"majority's limitation of the rule\"]). The Appellate Division majority, like County Court, rejected defendant's claims that the drugs found in his vehicle should have been suppressed, concluding that the officers had a founded suspicion of criminality based on defendant's conduct {**42 NY3d at 244} before the traffic stop, his statements in response to police questioning, and his status as a parolee. The Appellate Division dissent correctly references this Court's decision in Banks for the proposition that \" ' \"the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance\" ' \" (211 AD3d at 1332, quoting People v Blanche , 183 AD3d 1196 , 1198 [3d Dept 2020], quoting Banks , 85 NY2d at 562). Further, both the suppression court and the Appellate Division majority also correctly referenced People v McMillan , and People v Huntley , for the notion that \" 'in any evaluation of the reasonableness of a particular search or seizure,' . . . 'the fact of defendant's status as a parolee is always relevant and may be critical' \" ( McMillan , 29 NY3d 145, 148-149 [2017], quoting Huntley , 43 NY2d 175, 181 [1977]). However, the suppression court and both the Appellate Division majority and dissent all evaluated whether the officers' actions here were supported by founded suspicion ( see 211 AD3d at 1330; id. at 1332-1333 [Aarons, J., dissenting]). These references to \"founded suspicion\" appear to have their genesis in a different Banks decision, issued by the Third Department, People v Banks (148 AD3d 1359 , 1360 [3d Dept 2017]). In that decision, the Appellate Division cited to our 1995 decision in Banks for the erroneous proposition that officers must have a \"founded suspicion that criminal activity is afoot\" to justify extending the scope of the detention beyond the circumstances giving rise to a vehicular stop ( Banks , 148 AD3d at 1360). But this Court in Banks held that the defendant in that case was illegally detained because \"defendant's nervousness and the innocuous discrepancies in his and [a codefendant's] answers to the Trooper's questions regarding the origin, destination and timing of their trip did not alone, as a matter of law, provide a basis for reasonable suspicion of criminality\" (85 NY2d at 562, citing People v Milaski , 62 NY2d 147, 156 [1984]). Notably, in his post-suppression hearing memorandum, defendant conceded that the officer had probable cause to stop him for failing to stop at the stop sign, but argued that \"[a] police officer m[a]y not artificially extend the detention\" incident to a traffic stop \"in order to investigate some unrelated crime or offense for which the officer does not have reasonable suspicion or probable cause.\" On appeal, both defendant and the prosecution refer to the lesser \"founded suspicion\" standard {**42 NY3d at 245} at different points in their briefing. As we reaffirm today, that is not the proper standard ( see majority op at 240). However, the parties also expressly discuss whether the officers had reasonable suspicion to prolong defendant's detention. Defendant, relying on Banks and Milaski , repeats the argument he asserted before the Appellate Division that \"[i]t was during the unlawful prolonged detention of defendant that the police officers removed property from defendant's pockets and found receipts from Popeye's and White Castle. It is well settled that apparent nervousness and inconsistent answers to police questioning about one's whereabouts do not alone provide a basis for reasonable suspicion of criminal activity upon which further detention is justified ( see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 U.S. 868; People v Milaski, 62 NY2d 147, 156 [1984]). Thus, even if defendant was agitated or nervous and gave inconsistent answers to [the officer's] questioning of his whereabouts prior to the stop, such [*5] actions do not provide a founded suspicion of criminality to justify a prolonged detention of defendant. Consequently, the prolonged detention was unreasonable, and all evidence obtained as a result of the detention, including the heroin, must be suppressed and the indictment dismissed.\" The prosecution, as before the Appellate Division, contends that \"defendant's detention for less than 30 minutes was based upon reasonable suspicion that criminal activity was afoot\" because he \"was seen outside the county by a seasoned police officer, he was out past his curfew, he possessed fast-food wrappers and receipts from restaurants outside the county date-stamped and timestamped that afternoon, he made up four false explanations about where he had been coming from, exhibited extremely nervous behavior, including sweating profusely and pacing, and finally, as time went on, the defendant became disorderly.\" Similarly, before us, the prosecution maintains that, once defendant lied that \"he [had come] from Rochester, officers had reasonable suspicion of criminality sufficient to detain him {**42 NY3d at 246} through [the parole officer's] investigation.\" Describing the escalating level of suspicion, the prosecution argues specifically: \"[Defendant's] first two lies—(1) that he had dropped off his cousin, and (2) that he had been driving around looking for his wife—could be explained away as [him] attempting to conceal mere technical parole violations. But once [he] lied that he was in Rochester—which would be its own parole violation because Rochester is outside Chemung County—the level of suspicion was elevated further. Officers now had additional reason to suspect he was lying to cover up not just a technical parole violation but an actual crime. Combined with his highly nervous demeanor and the fact that he was already on parole for narcotics offenses, this gave officers reasonable suspicion that criminal activity was afoot. This reasonable suspicion gave officers cause to detain him pending [the parole officer's] arrival.\" The majority and I agree that defendant's detention must be justified by the more demanding reasonable suspicion standard—as opposed to founded suspicion. Thus, defendant, as the appellant, is not placed in a worse position by application of the correct standard here. Further, the prosecution argues that defendant's responses to the officer's permissible questioning eventually provided the officers with reasonable suspicion of criminal activity. County Court, confronted with defendant's claim that the officers lacked \"reasonable suspicion or probable cause\" to extend his detention, specifically ruled, adversely to defendant, on the constitutionality of this action. The Appellate Division affirmed, albeit under an erroneous founded suspicion standard. The Court's reminder that the proper standard is reasonable suspicion works in defendant's favor. In sum, defendant and the prosecution at different points have referenced the correct legal standard, that standard is more favorable to defendant, and the lower courts decided adversely to defendant on the specific issue he raised. [FN1] Therefore, the LaFontaine / Concepcion rule is no bar to addressing the constitutionality of defendant's detention, and accordingly {**42 NY3d at 247} obviates any need for remittal ( Concepcion , 17 NY3d at 195). [*6] III. On the merits, the record establishes that an officer familiar with defendant, his parole status, and his history of involvement with narcotics observed defendant's car driving in Pennsylvania—an apparent violation of a parole condition that defendant not leave Chemung County. The officer communicated his observations to another officer back in Syracuse, who also was familiar with defendant's criminal history and parole status. This second officer observed defendant drive back into Chemung County and followed him as he drove to a delicatessen before observing him run through a stop sign and drive into his own nearby driveway. [FN2] The officer then approached defendant, accompanied by another officer wearing a body cam. Defendant admitted he ran the stop sign, but then volunteered contradictory information about whether he had a curfew as a parolee before lying about his whereabouts in response to the officer's question about where he was coming from—accounts that changed several times once the officer responded that he knew defendant was not telling the truth based on what the officer observed once defendant exited the highway. The officers' stop of defendant's vehicle was supported by probable cause based on their observations of a traffic violation ( see People v Hinshaw , 35 NY3d 427 , 430 [2020]). Ordinarily, a police officer would have no lawful basis to detain a driver suspected of a traffic violation for an extended duration based on inaccurate responses to questions about their whereabouts alone because, absent more, and \"as a matter of law,\" such does not \"provide a basis for reasonable suspicion of criminality\" ( Banks , 85 NY2d at 562, citing Milaski , 62 NY2d at 156). Here, however, the officers possessed reasonable suspicion of criminal activity given defendant's false answers, combined with the officers' personal knowledge of his criminal history, parole status, and apparent parole violations for travel outside Chemung County beyond his curfew time ( see {**42 NY3d at 248} Rodriguez , 575 US at 354-355). [FN3] Put another way, if defendant was unknown to the officers, then \"nervousness and the innocuous discrepancies in his . . . answers\" ( Banks , 85 NY2d at 562) would not have justified the officers' prolonged detention after resolving the Vehicle and Traffic Law violation because driving through a stop sign does not provide reasonable suspicion that the driver has committed or is about to commit a crime. But, here, defendant was known to be on parole for drug-related conduct and was observed violating at least two conditions of his parole. That highly relevant information provided the requisite level of suspicion to hold defendant until his parole officer arrived. The parole officer's subsequent warrantless search of defendant's vehicle which led to the discovery of the illegal drugs was likewise constitutional because it was \"rationally and reasonably related to the performance of the parole officer's duties\" ( People v McMillan , 29 NY3d 145 , 148 [2017]). Specifically, the parole officer \"has an obligation to detect and to prevent parole violations for the protection of the public from the commission of further crimes; . . . to prevent violations of parole and to assist [the parolee] to a proper reintegration into [their] community\" ( People v Huntley , 43 NY2d 175, 181 [1977]). The record establishes the parole officer acted reasonably to discharge these duties. IV. I would affirm the Appellate Division and end the matter now rather than remit for what will be a perfunctory determination by that Court that the officers were justified in both the stop and subsequent detention. Therefore, while I join fully the majority's articulation of the proper standard to be applied, I dissent from its decision to delay that application in defendant's case. Chief Judge Wilson and Judges Garcia, Singas, Troutman and Halligan concur. Judge Rivera dissents and votes to affirm in an opinion. {**42 NY3d at 249} Order reversed and case remitted to County Court, Chemung County, for further proceedings in accordance with the opinion herein. Footnotes Footnote 1: Defendant also sought to suppress his statements to law enforcement made after the justification for the traffic stop had been exhausted, as obtained in violation of his Miranda rights. Footnote 2: The dissent's suggestion that the existence of reasonable suspicion to prolong the traffic stop can be decided by this Court in the first instance because that standard is more favorable to defendant than the incorrect standard applied by the courts below finds no support in LaFontaine , Concepcion , or their progeny ( see People v Concepcion , 17 NY3d 192 [2011]; People v LaFontaine , 92 NY2d 470 [1998]). Because neither the suppression court nor the Appellate Division applied the reasonable suspicion standard to the facts, we are precluded from reaching that issue here ( see CPL 470.15 [1]; 470.35 [1]; People v Ingram , 18 NY3d 948 , 949 [2012]). Whether reasonable suspicion exists is a mixed question of law and fact, and our review of that issue is limited to whether record support exists for the lower courts' determination ( see People v Harrison , 57 NY2d 470, 477 [1982]). Contrary to the dissent, we express no opinion on the mixed question of whether reasonable suspicion existed, and we would not characterize the lower courts' review of this issue as \"perfunctory\" or a mere formality (dissenting op at 248) given the important role of these courts in determining suppression issues in the first instance. Footnote 1: The majority predicates its disagreement with my conclusion that LaFontaine and its progeny do not bar our consideration of whether the police had reasonable suspicion before extending the seizure exclusively on the second of these three reasons ( see majority op at 241 n 2). But, as the above shows, my conclusion follows from all three premises taken together. Footnote 2: Defendant has never suggested that a different analysis controls because he had parked in his driveway when the officers approached him. Therefore, the relevance of this fact to his challenge is not before us. Footnote 3: This question is not a \"mixed\" one, as the majority asserts ( see majority op at 241 n 2) because neither party disputes the facts found below or inferences to be drawn therefrom, and the only issue is whether, \"as a matter of law, the officers' observations could . . . form the 'minimum showing necessary to establish' a reasonable suspicion that defendant had committed or was about to commit a crime\" ( People v Messano , 41 NY3d 228 , 235 [2024], quoting People v McRay , 51 NY2d 594, 601 [1980]). "
},
{
"from": "gpt",
"value": "A traffic stop\ncannot be extended for the purpose of investigating an unrelated crime for\nwhich the officer lacked reasonable suspicion. Lower courts used less\ndemanding \"founded suspicion\" analysis. Conviction reversed; case sent\nback to trial court for determination of suppression motion under proper\nstandard."
}
]
|
2024.06407 | [
{
"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 Bellinger 2024 NY Slip Op 06407 [233 AD3d 1331] December 19, 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] The People of the State of New York, Respondent, v Kristin M. Bellinger, Appellant. Danielle Neroni Reilly, Albany, for appellant. Lorraine C. Diamond, District Attorney, Fonda (Katherine Ehrlich of counsel), for respondent. Clark, J. Appeal from an order of the County Court of Montgomery County (Chad W. Brown, J.), entered June 22, 2023, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act. In 2023, defendant pleaded guilty to criminal sexual act in the second degree, in satisfaction of an indictment that also charged her with three counts of rape in the second degree, and was sentenced to six months in jail, to be followed by 10 years of postrelease supervision. The charges stem from when defendant, who was a 35-year-old special education teacher in a middle school BOCES program, had sexual intercourse with the victim, an eighth-grade student enrolled in two of her classes, on multiple occasions beginning when he was 13 years old. Defendant briefly dated the victim's father, with whom the victim resided, and sexually abused the victim when she would go to their house, often when the father was absent, to help the victim with schoolwork; later, the abuse continued at her house in another county. In anticipation of defendant's release from jail, the People prepared a risk assessment instrument (hereinafter RAI) in accordance with the Sex Offender Registration Act ( see Correction Law art 6-C [hereinafter SORA]) that assigned defendant a total of 125 points, including 20 points under risk factor 7 based upon her professional relationship with the victim, presumptively classifying defendant as a risk level three sex offender. The People argued that, in the event that County Court were to calculate defendant's presumptive risk level to be a risk level two, an upward departure to risk level three would be warranted. Following a SORA hearing, the court assigned a total of 85 points, including 20 points under risk factor 7, and classified defendant as a risk level two sex offender, declining the People's request for an upward departure. Defendant appeals. Defendant argues that County Court erred in assigning 20 points under risk factor 7, on the premise that she did not establish a relationship with the victim in a professional setting or for purposes of sexually abusing him, contending that her relationship with the victim began as a \"familial\" one while she was dating his father, and that no abuse occurred until after she had already formed that relationship with the victim. In establishing an offender's appropriate risk level under SORA, \"[t]he People 'bear the burden of proving the facts supporting the determinations' by clear and convincing evidence\" ( People v Pettigrew , 14 NY3d 406 , 408 [2010], quoting Correction Law § 168-n [3]). \"The Guidelines provide that 20 points should be assessed under risk factor 7 if [, as relevant here,] 'the offender's crime . . . arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship' \" ( People v Cook , 29 NY3d 121 , 125 [2017] [brackets omitted], quoting Sex Offender Registration Act: Risk Assessment Guidelines [*2] and Commentary, risk factor 7 [2006]). It has been recognized that \"factor 7 . . . is meant to focus on the relationship, or absence of a relationship, between the offender and his [or her] victim before the crime was committed \" ( People v Johnson , 11 NY3d 416 , 420 [2008] [emphasis added]; accord People v Cook , 29 NY3d at 126). The evidence reflects that, for months prior to the crimes here, defendant was the victim's classroom teacher; notwithstanding her later personal relationship with the victim's father, defendant tutored the victim in their home, often when the father worked late. As there was an established teacher-student relationship between defendant and the victim and the trust between them had been formed in that professional capacity, she breached that trust by sexually abusing the victim, and thus, County Court was fully justified in assessing 20 points under risk factor 7 ( see People v Briggs , 86 AD3d 903 , 904 [3d Dept 2011]; see also People v Sick , 186 AD3d 1733 , 1733-1734 [2d Dept 2020], lv denied 36 NY3d 904 [2020]; People v Somodi , 170 AD3d 1056 , 1057-1058 [2d Dept 2019]; People v Singh , 165 AD3d 444 , 444 [1st Dept 2018], lv denied 32 NY3d 914 [2019]; People v Cuesta , 65 AD3d 1113 , 1114 [2d Dept 2009]). Defendant further contends that she was denied the effective assistance of counsel in that defense counsel failed to request a downward departure based upon certain claimed mitigating factors. \"[T]o establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct\" ( People v Lopez , 226 AD3d 1165 , 1166 [3d Dept 2024] [internal quotation marks and citations omitted], lv denied 42 NY3d 905 [2024]; see People v Sposito , 37 NY3d 1149 , 1150 [2022]). A defendant seeking a downward departure must \"demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines\" ( People v Waterbury , 231 AD3d 201 , 203 [3d Dept 2024] [internal quotation and citations omitted]). To the extent that defendant faults her counsel for conceding 25 points under risk factor 2, which addressed the nature of the sexual contact, the victim's account and defendant's guilty plea supported the finding that defendant subjected the victim to sexual intercourse—as well as other sexual contact—more than 10 times, fully supporting the assessment of 25 points. Given the age disparity between defendant and the victim and the surrounding circumstances, the RAI did not result in an overassessment on the premise that the victims' inability to consent was due to age, and counsel was not ineffective for failing to argue that these facts warranted a downward departure ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 9 [2006]; compare People v Wilcox , 221 [*3] AD3d 1370, 1372 [3d Dept 2023]). Defendant's lack of criminal history was taken into account in the RAI in that no points were assessed under risk factor 9 and, likewise, she was not assessed points under risk factor 14 in recognition of her 10-year period of postrelease supervision. Accordingly, these factors could not have provided a basis for a downward departure ( see People v Green , 201 AD3d 1137 , 1139 [3d Dept 2022], lv denied 38 NY3d 906 [2022]). In light of the foregoing, and given that defense counsel made appropriate objections at the SORA hearing and successfully challenged the assessment of points under risk factors 1, 6 and 12, resulting in a risk level two classification—rather than the People's recommendation for a presumptive risk level three designation or an upward modification to risk level three—we are satisfied that defendant received meaningful representation ( see id. at 1140; see also People v Lopez , 226 AD3d at 1167). Defendant's remaining claims have been considered and found to be without merit. Garry, P.J., Egan Jr., Pritzker and Mackey, JJ., concur. Ordered that the order is affirmed, without costs."
},
{
"from": "gpt",
"value": "Lower court properly assigned 20 points under Risk Factor 7 (crime arose\nin the context of a professional or a vocational relationship between the\ndefendant and the victim) where defendant was victim's special ed teacher.\nAlthough defendant had a short-lived relationship with her student-victim's\nfather,\n\"an established teacher-student relationship between defendant and\nthe victim, and the trust between them, had been formed in that\nprofessional capacity.\n\""
}
]
|
2024.06067 | [
{
"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 McKay 2024 NY Slip Op 06067 [233 AD3d 715] December 4, 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 Trevor McKay, Appellant. Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel), for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Jill Oziemblewski and Raffaelina Gianfrancesco of counsel), for respondent. Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated January 12, 2023, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. Ordered that the order is affirmed, without costs or disbursements. In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court, after a hearing, designated the defendant a level three sex offender based upon the assessment of a total of 115 points on the risk assessment instrument and the denial of the defendant's request for a downward departure from his presumptive risk level. The defendant appeals. A defendant seeking a downward departure from the presumptive risk level has the initial burden of \"(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence\" ( People v Wyatt , 89 AD3d 112 , 128 [2011]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti , 23 NY3d 841 , 861 [2014]). \"If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism\" ( People v Khan , 182 AD3d 613 , 614 [2020]; see People v Gillotti , 23 NY3d at 861). Although debilitating illness may constitute a basis for a downward departure ( see Guidelines at 5; People v Stevens , 55 AD3d 892 , 893-894 [2008]), here, the defendant failed to demonstrate by a preponderance of the evidence that his physical condition minimized his risk of recidivism, particularly since the health issues associated with his condition existed at the time the defendant committed the underlying offense ( see People v Rodriquez , 179 AD3d 957 , 958 [2020]; People v Iliff , 132 AD3d 831 , 831 [2015]). Moreover, while the assessment of points under risk factors 3 and 7 may result in an overassessment of a defendant's risk to public safety in some cases involving offenders who possessed child pornography ( see People v Gillotti , 23 NY3d at 860; People v Johnson , 11 NY3d 416 , 421 [2008]), a downward departure is not warranted as a matter of discretion under the circumstances [*2] of this case ( see People v Bustillo , 220 AD3d 814 , 815 [2023]; People v Galeana , 208 AD3d 1372 , 1373 [2022]). Accordingly, the Supreme Court properly designated the defendant a level three sex offender. Duffy, J.P., Miller, Dowling and Hom, JJ., concur."
},
{
"from": "gpt",
"value": "Debilitating illness may constitute a basis for a downward departure, but\nthis defendant \"failed to demonstrate by a preponderance of the evidence\nthat his physical condition minimized his risk of recidivism, particularly\nsince the health issues associated with his condition existed at the time the\ndefendant committed the underlying offense....\n\""
}
]
|
2024.04640 | [
{
"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 Johns 2024 NY Slip Op 04640 [230 AD3d 1478] September 26, 2024 Appellate Division, Third 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 Gary Johns Jr., Appellant. Rural Law Center of New York, Inc., Plattsburgh (Lora J. Tryon of counsel), for appellant. Patrick A. Perfetti, District Attorney, Cortland, for respondent. Mackey, J. Appeal from an order of the County Court of Cortland County (Julie A. Campbell, J.), entered July 28, 2020, which denied defendant's application pursuant to Correction Law § 168-o (2) for reclassification of his sex offender risk level status. In 1999, defendant was convicted upon his plea of guilty of the reduced charge of attempted rape in the first degree and was sentenced to a prison term of 5 1/2 years, to be followed by five years of postrelease supervision. Upon his release from incarceration in 2003, defendant was classified as a risk level two sex offender and designated a sexually violent offender. In 2020, defendant applied, for the fifth time, for a modification of his risk level classification pursuant to Correction Law § 168-o (2), seeking to be reclassified as a risk level one sex offender as his conditions have changed subsequent to the initial risk level classification given, among other things, that he has remained arrest free, successfully completed sex offender treatment while incarcerated and gained custody of his daughter, which helped him understand the impact of his underlying criminal actions. The Board of Examiners of Sex Offenders in an updated recommendation did not oppose the reclassification. The People initially did not oppose defendant's application for reclassification, but at the hearing for the first time expressed a change of position opposing the reclassification. [FN*] County Court denied the application, and this appeal by defendant ensued. Defendant contends that he was deprived of due process as he was not provided with notice and an opportunity to be heard regarding various Family Court petitions and proceedings on which County Court relied in denying his application for a modification of his risk level sex offender status. Under the circumstances here, we agree. \"Correction Law § 168-o (2) permits a sex offender required to register under [the Sex Offender Registration Act] to petition annually for modification of his [or her] risk level classification. The petitioner bears the burden of proving the facts supporting a requested modification by clear and convincing evidence\" ( People v Lashway , 25 NY3d 478 , 483 [2015] [citation omitted]; see People v Lashway , 226 AD3d 1270 , 1271 [3d Dept 2024]). Although Correction Law § 168-o (4) does not contain any language entitling a defendant to prehearing discovery, the same procedural due process rights regarding a defendant's access to documents relied on in determining the initial risk assessment are applicable where a defendant seeks a modification of his or her risk level classification pursuant to Correction Law § 168-o ( see People v Lashway , 25 NY3d at 483-484). In discrediting defendant's sworn statements in support of his application and in finding his statements to be misleading, County Court relied heavily upon various Family Court proceedings, including neglect proceedings as far back as 2012, and a family offense petition containing allegations against defendant [*2] that were subsequently withdrawn. The court detailed the allegations in the petitions, finding that the allegations contradicted defendant's sworn statements in his application and that, by excluding such information from his sworn affidavit, defendant attempted to mislead the court. Defendant was not given an opportunity to respond to or defend himself against consideration of such information. Although at the commencement of the proceeding County Court stated that it was taking \"judicial notice of all prior criminal and civil proceedings involving [defendant] including, but not limited to, each of his prior applications seeking a downward modification,\" we find that, under the circumstances here, such a generalized statement by the court failed to give defendant meaningful notice of information being considered and an opportunity to be heard. Further, we note that neither the Board, in its updated recommendation, nor the People, in setting forth their opposition at the hearing, advanced any information pertaining to any Family Court petitions and/or proceedings. It was not until County Court issued its decision that defendant was aware that Family Court matters were being considered. This is not to say that every piece of information of which a court takes judicial notice necessarily must be disclosed to a defendant in every Sex Offender Registration Act proceeding as a matter of course. Here, however, County Court's overwhelming reliance on the allegations set forth in the Family Court petitions and/or proceedings, some of which were unfounded or withdrawn, without specifically identifying them, deprived defendant of notice or a meaningful opportunity to respond to the basis for the court's denial of his application. As such, we find that there was a violation of due process requiring that the matter be remitted for a new hearing, as we do not find such error under these circumstances to be harmless ( compare People v Baxin , 26 NY3d 6 , 11 [2015]). In remitting the matter, we deem it necessary to reiterate that \"Correction Law § 168-o does not provide a vehicle for reviewing whether a defendant's circumstances were properly analyzed in the first instance to arrive at his or her risk level. Rather, the relevant inquiry regarding Correction Law § 168-o (2) applications is whether conditions have changed subsequent to the initial risk level determination warranting a modification thereof\" ( People v Anthony , 171 AD3d 1412 , 1413 [3d Dept 2019] [internal quotation marks, brackets and citations omitted]; see People v Shader , 217 AD3d 1040 , 1041 [3d Dept 2023], lv granted 40 NY3d 909 [2024]; People v Kaminski , 208 AD3d 1395 , 1396 [3d Dept 2022], lv denied 39 NY3d 905 [2022]). In other words, and contrary to County Court's finding here, the proper level of review is not whether there is clear and convincing evidence to support defendant's initial risk level classification, but rather, whether defendant has met his burden of establishing by clear and convincing [*3] evidence that a modification of his risk assessment level is warranted based upon a change in conditions. Clark, J.P., Aarons, Reynolds Fitzgerald and McShan, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the County Court of Cortland County for further proceedings not inconsistent with this Court's decision. Footnotes Footnote *: Defendant objected to the People's opposition being raised for the first time at the hearing and was afforded an opportunity to submit written submissions after the hearing. "
},
{
"from": "gpt",
"value": "Defendant not provided with notice and an opportunity to be heard\nconcerning Family Court proceedings on which the court sua sponte relied\nin denying defendant's application; defendant did not even know that\nFamily Court matters were being considered until the SORA court issued\nits decision."
}
]
|
2024.04789 | [
{
"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 Robinson 2024 NY Slip Op 04789 [231 AD3d 754] October 2, 2024 Appellate Division, Second 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 Randell Robinson, Appellant. Richard L. Herzfeld, New York, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Meaghan Powers and Lauren Tan of counsel), for respondent. Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated February 26, 2020, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. Ordered that the order is affirmed, without costs or disbursements. In April 2010, the defendant was convicted, upon his plea of guilty, of two counts of criminal sexual act in the first degree, aggravated sexual abuse in the second degree, sexual abuse in the first degree, aggravated unlicensed operation of a motor vehicle in the first degree, and endangering the welfare of a child. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the Supreme Court assessed the defendant 130 points on the risk assessment instrument, resulting in a presumptive risk level of three, and designated the defendant a level three sex offender. The defendant contends that the Supreme Court violated his due process right to appear at the SORA hearing when it conducted the hearing in his absence. This contention is unpreserved for appellate review ( see CPL 470.05 [2]; People v Chang Soo Park , 187 AD3d 804 [2020]). In any event, under the circumstances of this case, the defendant's contention is without merit ( see People v Chang Soo Park , 187 AD3d 804 [2020]; People v Porter , 37 AD3d 797 [2007]). \"A sex offender facing risk level classification under [SORA] has a due process right to be present at the SORA hearing\" ( People v Gonzalez , 69 AD3d 819 , 819 [2010]; see Correction Law § 168-n [3]; People v Gutierrez-Lucero , 103 AD3d 89 [2012]). \"To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence\" ( People v Arrahman , 83 AD3d 680 , 680 [2011] [internal quotation marks omitted]). \"Thus, the defendant's failure to appear must be deliberate\" ( id .). Here, the record reflects that the defendant waived his right to be present, and therefore, the Supreme Court properly proceeded with the hearing in his absence ( see People v Porter , 37 AD3d 797 [2007]). The defendant challenges the assessment of points under risk factor 11 (drug or alcohol abuse). In establishing a defendant's risk level pursuant to SORA, the People \"bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence\" (Correction Law § 168-n [3]; see People v Bullock , 217 AD3d 886 , 887 [2023]). Here, the People [*2] established by clear and convincing evidence that the defendant has a history of substance abuse within the meaning of risk factor 11 through submission of the case summary prepared by the Board of Examiners of Sex Offenders, the presentence investigation report, and reports completed by corrections officers and counselors. These documents recite, among other things, that the defendant began using marijuana at the age of 13 and, at his worst, smoked marijuana on a daily basis, he had used cocaine and marijuana while on parole, and he scored in the \"Alcoholic\" range on the Michigan Alcohol Screening Test and in the \"Substance Abuse Indicated\" range on the Simple Screening Inventory upon his incarceration for the underlying offenses. Further, the Supreme Court properly assessed the defendant 15 points under risk factor 11 despite the defendant's abstinence during his incarceration ( see People v Oliver , 215 AD3d 772 , 773 [2023]; People v Adkinson , 175 AD3d 612 [2019]). Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel by defense counsel's failure to request a downward departure. \"A sex offender facing risk level classification under SORA has a right to the effective assistance of counsel\" ( People v Parvez , 209 AD3d 885 , 886 [2022] [internal quotation marks omitted]; see People v Bowles , 89 AD3d 171 , 178-179 [2011]). Under the federal ineffective assistance of counsel standard, the defendant must satisfy a two-pronged test in order to establish that counsel was ineffective: (1) \"that counsel's representation fell below an objective standard of reasonableness,\" and (2) \"that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different\" ( Strickland v Washington , 466 US 668, 688, 694 [1984]; see People v Georgiou , 38 AD3d 155 , 160 [2007]). Under the New York standard, the first prong is identical to its federal counterpart, but the second prong is based on the fairness of the process as a whole rather than on the impact of counsel's errors on the outcome of the case ( see People v Georgiou , 38 AD3d at 160-161). Even under the state standard, however, a claim that counsel was ineffective for failing to make a motion or argument is without merit when such motion or argument had little or no chance of success ( see People v Caban , 5 NY3d 143 , 152 [2005]; People v Dabney , 221 AD3d 624 , 625 [2023]). Here, the record demonstrates that a request for a downward departure would have had little or no chance of success, and there is no reasonable probability that, had defense counsel requested a downward departure, the result of the proceeding would have been different ( see People v Ivey , 223 AD3d 686 [2024]; People v Korzeniowski , 220 AD3d 816 [2023]). The defendant's remaining contention is without merit. Accordingly, the Supreme Court properly designated the defendant a level three sex offender. Brathwaite Nelson, J.P., Maltese, Christopher and Love, JJ., concur."
},
{
"from": "gpt",
"value": "\"To\nestablish whether a defendant, by failing to appear at a SORA hearing, has\nwaived the right to be present, evidence must be shown that the defendant\nwas advised of the hearing date, of the right to be present at the hearing,\nand that the hearing would be conducted in his or her absence\" (People v\nArrahman, 83 AD3d 680).\n\"Thus, the defendant's failure to appear must be deliberate.\n\" Because the requisite evidentiary showing was made here, the\nSupreme Court properly conducted the SORA hearing in defendant's\nabsence."
}
]
|
2024.05729 | [
{
"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 Adams 2024 NY Slip Op 05729 [232 AD3d 1302] November 15, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 8, 2025 [*1] The People of the State of New York, Respondent, v Steven J. Adams, Appellant. Hayden M. Dadd, Conflict Defender, Geneseo (Bradley E. Keem of counsel), for defendant-appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), for respondent. Appeal from a judgment of the Livingston County Court (Jennifer M. Noto, J.), rendered December 15, 2022. The judgment convicted defendant upon a guilty plea of murder in the second degree and tampering with physical evidence. It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25 [1]) and tampering with physical evidence (§ 215.40 [1] [a]), stemming from the shooting death of the victim. We affirm. Defendant contends that County Court did not make sufficient inquiry as to the People's actual readiness for trial under CPL 30.30 (5) and that his right to a speedy trial was violated inasmuch as, although the People indicated their readiness for trial, they had not yet turned over all required law enforcement disciplinary records and therefore failed to comply with their initial disclosure obligations under CPL 245.20 (1) (k) (iv). However, that contention is not preserved for appellate review \"because he never moved to dismiss the indictment on that ground\" ( People v Valentin , 183 AD3d 1271 , 1272 [4th Dept 2020], lv denied 35 NY3d 1049 [2020]; see People v Robinson , 225 AD3d 1266 , 1267-1268 [4th Dept 2024]) or objected to the court's on-the-record inquiry into the People's actual readiness ( see generally CPL 30.30 [5]; People v Bonilla , 229 AD3d 850 , 854 [3d Dept 2024]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [3] [c]). Moreover, we conclude that \"[b]y subsequently pleading guilty, . . . defendant forfeited [his] contention [insofar as it related to the People's disclosure obligations] because 'the forfeiture occasioned by a guilty plea extends to claims premised upon, inter alia, . . . motions relating to discovery' \" ( People v Smith , 217 AD3d 1578 , 1578 [4th Dept 2023]; see Robinson , 225 AD3d at 1268). Defendant further contends that he was denied effective assistance of counsel on the ground that defense counsel failed to move to dismiss the indictment pursuant to CPL 30.30 (1). Even assuming, arguendo, that defendant's contention survives his guilty plea ( see People v Motell , 229 AD3d 1330 , 1332 [4th Dept 2024]; People v Clark , 191 AD3d 1485 , 1486 [4th Dept 2021], lv denied 37 NY3d 954 [2021]), we reject that contention inasmuch as \"[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to 'make a motion or argument that has little or no chance of success' \" ( People v Caban , 5 NY3d 143 , 152 [2005]; see People v Little , 229 AD3d 1156 , 1157 [4th Dept 2024], lv denied 42 NY3d 971 [2024]). CPL 30.30 (1) \"do[es] not apply to a criminal action wherein the defendant is accused of,\" inter alia, murder in the second degree, as is true in this case (CPL 30.30 [3] [a]). Consequently, defense counsel could not be ineffective for failing to file a statutory speedy trial motion where, as here, the requirements of CPL 30.30 (1) do not apply ( see People v Word , 260 AD2d 196, 197 [1st Dept 1999], lv denied 93 NY2d 1029 [1999], denied upon reconsideration 94 NY2d 799 [1999]; People v Ortiz , 209 AD2d 332, 334 [1st Dept 1994], lv denied 86 NY2d 739 [1995]; see [*2] generally People v Wiggins , 31 NY3d 1 , 11 [2018]). Defendant further contends that the court erred in refusing to suppress statements that he made during two police interrogations inasmuch as he unequivocally requested counsel during the first police interrogation. We reject that contention and conclude that the record amply supports the court's determination that defendant did not, at any time during the first interrogation, unequivocally request the assistance of counsel ( see People v Karlsen , 147 AD3d 1466 , 1467 [4th Dept 2017], lv denied 29 NY3d 1082 [2017]; see generally People v Dawson , 38 NY3d 1055 , 1055 [2022]). Defendant's statement that he was getting \"pretty close\" to asking for counsel established only that, as of that time, he had not yet requested the assistance of counsel; it was \"merely a forewarning of a possible, contingent desire to confer with counsel rather than an unequivocal statement of [a] defendant's present desire to do so\" ( People v Bowman , 194 AD3d 1123 , 1128 [3d Dept 2021], lv denied 37 NY3d 963 [2021] [internal quotation marks omitted]; see generally People v Mitchell , 2 NY3d 272 , 276 [2004]; People v Ibarrondo , 208 AD3d 1647 , 1648 [4th Dept 2022], lv denied 39 NY3d 1111 [2023]). Moreover, defendant's other verbalization concerning the assistance of counsel was presented to the police in the form of a question and it is well settled that \"a query as to whether counsel ought to be obtained will not suffice to unequivocally invoke the indelible right to counsel\" ( Dawson , 38 NY3d at 1055 [internal quotation marks omitted]; see People v Hicks , 69 NY2d 969, 970 [1987], rearg denied 70 NY2d 796 [1987]; People v Hall , 53 AD3d 1080 , 1081 [4th Dept 2008], lv denied 11 NY3d 855 [2008]). Defendant also contends that suppression of his statements made during the second interrogation, which was conducted the morning after the first interrogation, was required because the police did not reread the Miranda warnings to him before the second interrogation. We reject that contention. It is well settled that there is \"no need for the police to readminister Miranda warnings [where, as here,] defendant remained in continuous custody, nothing occurred that would have induced defendant to believe he was no longer the focal point of the investigation, and there was no reason to believe that defendant no longer understood his constitutional rights\" ( People v Hinojoso-Soto , 161 AD3d 1541 , 1543 [4th Dept 2018], lv denied 32 NY3d 938 [2018] [internal quotation marks omitted]; see People v Peterkin , 89 AD3d 1455 , 1455 [4th Dept 2011], lv denied 18 NY3d 885 [2012]). It is undisputed that defendant remained in custody between the reading of the Miranda warnings and the renewed questioning of defendant during the second interrogation, and we further conclude that the evidence presented at the suppression hearing supports the determination that the time period between the Miranda warnings and the renewed questioning was not unreasonable ( see Peterkin , 89 AD3d at 1456; People v Cooper , 59 AD3d 1052 , 1054 [4th Dept 2009], lv denied 12 NY3d 852 [2009]), particularly in light of the fact that defendant's custody occurred in a non-coercive environment, where he was provided with food, cigarettes, the ability to watch television, and a place to rest ( see Cooper , 59 AD3d at 1054; People v Leflore , 303 AD2d 1041, 1042 [4th Dept 2003], lv denied 100 NY2d 563 [2003]; People v Baker , 208 AD2d 758, 758-759 [2d Dept 1994], lv denied 85 NY2d 905 [1995]). We reject defendant's further contention that he was coerced into making statements on the ground that the police engaged in deceptive tactics when they used his prior friendship with an investigator to their advantage during the interrogations. \"Deceptive police stratagems in securing a statement 'need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession' \" ( People v Dishaw , 30 AD3d 689 , 690 [3d Dept 2006], lv denied 7 NY3d 787 [2006], quoting People v Tarsia , 50 NY2d 1, 11 [1980]; see People v Bradberry , 131 AD3d 800 , 802 [4th Dept 2015], lv denied 26 NY3d 1086 [2015]), and there was no such showing here ( see generally People v Lee , 277 AD2d 1006, 1007 [4th Dept 2000], lv denied 96 NY2d 785 [2001]). Finally, we reject defendant's contention that the sentence is unduly harsh and severe. Present—Whalen, P.J., Curran, Ogden, DelConte and Hannah, JJ."
},
{
"from": "gpt",
"value": "Contention of discovery/speedy trial violation is not preserved because\ndefendant \"never moved to dismiss the indictment on that ground\" or\nobjected to the court's on-the-record inquiry into the People's actual\nreadiness. Moreover,\n\"[b]y subsequently pleading guilty, . . . defendant\nforfeited [his] contention [insofar as it related to the People's disclosure\nobligations] because 'the forfeiture occasioned by a guilty plea extends to\nclaims premised upon, inter alia, . . . motions relating to discovery'\n\""
}
]
|
2024.03565 | [
{
"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 Bonilla 2024 NY Slip Op 03565 [229 AD3d 850] July 3, 2024 Appellate Division, Third 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 Harry Bonilla, Appellant. Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant. P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent. Ceresia, J. Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered July 28, 2020 in Albany County, upon a verdict convicting defendant of the crimes of attempted kidnapping in the second degree as a sexually motivated felony, sexual abuse in the first degree and assault in the third degree. Defendant approached a 16-year-old girl on the street, grabbed her buttocks, tried to force her into his car and punched her. As a result, defendant was charged by indictment with attempted kidnapping in the second degree as a sexually motivated felony, sexual abuse in the first degree and assault in the third degree. After a jury trial, he was convicted as charged. At sentencing, the People waived their right to seek persistent felony offender status and, in exchange, defendant agreed to be sentenced to a prison term of 15 years followed by 20 years of postrelease supervision for the attempted kidnapping conviction, a consecutive prison term of five years followed by 15 years of postrelease supervision for the sexual abuse conviction, and a lesser concurrent term of incarceration for the assault conviction. Defendant appeals. Initially, defendant contends that the evidence is legally insufficient to support his convictions for attempted kidnapping and sexual abuse and that the convictions are against the weight of the evidence. Defendant's legal sufficiency claims with respect to the attempted kidnapping charge are unpreserved, but our weight of the evidence analysis nevertheless involves consideration of whether the proof supports each of the elements of the crimes ( see People v Stone , 179 AD3d 1287 , 1288 [3d Dept 2020]; People v Stover , 174 AD3d 1150 , 1151 [3d Dept 2019], lv denied 34 NY3d 954 [2019]). With that said, \"[w]hen assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crimes proved beyond a reasonable doubt\" ( People v Lewis , 224 AD3d 1143 , 1144 [3d Dept 2024] [internal quotation marks, brackets and citations omitted]). As for our evaluation of the weight of the evidence, \"we must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence\" ( People v Jenkins , 215 AD3d 1118 , 1119 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 997 [2023]). The victim testified as follows. On December 4, 2018, she got out of night school at around 7:15 p.m. and was walking home alone when defendant approached her on foot. Defendant attempted to speak with the victim, asking her how old she was. She responded that she was 16, and defendant [*2] then stated that she looked too good to be 16 years old. The victim continued walking and, as she did so, she heard the sound of a vehicle door unlocking. Assuming that it was defendant's vehicle, the victim turned and went the wrong way down a one-way street so that defendant could not follow her in his vehicle. She also made a few phone calls in an attempt to \"talk until [she] got home and [to] feel safe,\" but the people whom she called did not answer. When the victim reached the end of the block, she saw defendant walking toward her again, coming from the direction of a black SUV. Defendant said he wanted to talk to her and stated, \"let's get in the car,\" and then remotely unlocked the SUV. The victim kept walking but defendant caught up to her, grabbed her buttocks and said, \"that felt nice.\" The victim responded, \"that's sexual harassment,\" but defendant grabbed her buttocks again. As the victim tried to hurry away from defendant, he told her he had a gun and threatened to blow her brains out if she did not put her phone away. Defendant then took hold of the victim's wrist and dragged her to within five feet of the SUV. When the victim fought back against defendant, he grasped her hair with both hands and continued pulling her, telling her to stop making a scene and calling her an expletive. The victim dropped to the ground and defendant finally let go of her. The victim then stood up, whereupon defendant punched her in the mouth. She turned and fled to a nearby playground, called 911 and hid until police arrived. Surveillance footage of the area in question was introduced at trial, which depicted two individuals appearing to struggle, with one person making quick movements and seeming to fall down at one point, and then apparently being dragged by the other person before eventually running away. During her testimony, the victim identified herself as the person being dragged and defendant as the attacker. The victim also identified defendant in court. In addition to the victim's testimony and the surveillance video, the People introduced a recording of the victim's 911 call from that night. In a frantic voice and while breathing heavily, the victim said that she was hiding in a park and stated that she almost got kidnapped and that a guy \"touched [her] butt,\" grabbed her, pulled her toward his vehicle and hit her. A responding patrol officer testified that the victim was hiding at the playground when he arrived and he had to call out and tell her it was safe to come out, whereupon he found her hysterically crying with a laceration on her lip. According to testimony from other officers, the victim gave the police a detailed description of the perpetrator and the black SUV, and they located video camera footage which depicted a matching vehicle. From that video, the police were able to ascertain the license plate and traced it to defendant's housemate. Defendant's parole officer testified that while defendant was incarcerated awaiting trial [*3] in this case, she visited him in jail to serve him with parole violation paperwork. Upon encountering defendant, the officer asked him how he was doing, and defendant replied, \"not great.\" The officer asked why, and defendant stated that he was being unfairly portrayed in the media and then went on to provide a different version of the events of the night in question, in which he described a mutually flirtatious encounter with the victim. Defendant continued, stating that he touched the victim's hair and butt, but she then spit in his face and so he \"popped her.\" Regarding the issue of legal sufficiency, as relevant here, sexual abuse in the first degree is defined as \"subject[ing] another person to sexual contact . . . [b]y forcible compulsion\" (Penal Law § 130.65 [1]). Defendant's sole argument is that the evidence failed to support the forcible compulsion element of this charge. Forcible compulsion \"means to compel by the 'use of physical force' \" ( People v Christie , 224 AD3d 1097 , 1098 [3d Dept 2024], quoting Penal Law § 130.00 [8] [a]) or by \"a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped\" (Penal Law § 130.00 [8] [b]). Defendant's position is that this element was not established because there was no proof that he used force or made threats before he grabbed the victim's buttocks—that is, the purported threatening and dragging of the victim came afterward. The People respond that forcible compulsion was sufficiently proven through evidence of an implied threat. \"The determination of whether such an implied threat existed involves a subjective inquiry into what a victim feared a defendant might have done if he or she did not comply . . . consider[ing] all relevant factors including the age of the victim, the relative size and strength of the defendant and victim, and the nature of the defendant's relationship to the victim\" ( People v Porter , 82 AD3d 1412 , 1413 [3d Dept 2011] [internal quotation marks, brackets and citations omitted], lv denied 16 NY3d 898 [2011]; see People v Machia , 206 AD3d 1272 , 1276 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]; People v Miller , 226 AD2d 833, 836 [3d Dept 1996], lv denied 88 NY2d 939 [1996]). Here, the victim was young, alone and vulnerable, having been approached by an unknown adult man on a darkened street. As reflected in the victim's testimony, by the time defendant grabbed her buttocks, she had been actively trying to evade him and did not feel safe. The victim also testified that when defendant touched her buttocks, \"[h]e punched at it like, like grabbed at it.\" The jury also had the opportunity to compare the relative sizes of the victim—who, according to the People's sentencing memorandum, had a childlike appearance—and defendant—who, the record reveals, was 32 years old, six feet tall and 205 pounds. Under these circumstances, there [*4] was ample proof that the victim feared for her own safety to support the element of forcible compulsion by means of an implied threat ( see People v Machia , 206 AD3d at 1276; People v Porter , 82 AD3d at 1414). As to the weight of the evidence, a different verdict would not necessarily have been unreasonable. Nevertheless, deferring to the jury's assessment of the credibility and demeanor of the victim and other witnesses, we find that the verdict is supported by the weight of the evidence ( see People v Hartle , 159 AD3d 1149 , 1153 [3d Dept 2018], lv denied 31 NY3d 1082 [2018]; People v Manning , 151 AD3d 1936 , 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]). Moving on, defendant's assertion that the attempted kidnapping conviction merged with the sexual abuse and assault convictions is unpreserved ( see People v Hanley , 20 NY3d 601 , 606 [2013]) and, in any event, lacks merit. The merger doctrine applies when acts constituting the crime of kidnapping are \"so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them\" ( People v Gonzalez , 80 NY2d 146, 153 [1992] [internal quotation marks and citation omitted]; see People v Hanley , 20 NY3d at 605-606). Although the acts constituting each of the crimes of conviction herein occurred in relatively quick succession, defendant's attempted abduction of the victim was not \"simultaneous and inseparable\" from the other crimes ( People v Place , 152 AD3d 976 , 980 [3d Dept 2017] [internal quotation marks and citation omitted], lv denied 30 NY3d 1063 [2017]; see People v Thorpe , 141 AD3d 927 , 932 [3d Dept 2016], lv denied 28 NY3d 1031 [2016]). The sexual abuse was completed after defendant grabbed the victim's buttocks. Defendant then committed the attempted kidnapping by dragging the victim toward the SUV. When defendant let go of the victim, the attempted kidnapping ceased at that point. The assault then occurred after the victim got back to her feet and defendant proceeded to punch her. Given that each crime was discrete, and the attempted kidnapping was not merely \"the incidental means employed to facilitate the commission of\" the sexual abuse and assault ( People v Cassidy , 40 NY2d 763, 768 [1976]), the merger doctrine does not apply ( see People v Smith , 47 NY2d 83, 87-88 [1979]). We reject defendant's related claim that trial counsel was ineffective in not raising this issue, as counsel will not be faulted for failing to advance a meritless claim ( see People v Place , 152 AD3d at 980). Next, defendant makes two arguments pertaining to the People's statement of trial readiness. First, defendant asserts that, after the People filed the mandated certificate of compliance, Supreme Court failed to inquire of the People on the record as to their actual readiness for trial ( see CPL 30.30 [5]; 245.20, 245.50 [3]; People v McCarty , 221 AD3d 1360 , 1361 [3d Dept 2023], lv denied 40 [*5] NY3d 1093 [2024]). This claim, however, is not preserved for our review, nor does it, as defendant insists, constitute a mode of proceedings error that is exempt from the preservation requirement ( see People v Gray , 86 NY2d 10, 20-22 [1995]; see also People v Grumberg , 153 AD3d 1525 , 1526 [3d Dept 2017]). Second, defendant contends that the People's certificate of compliance and accompanying statement of trial readiness were illusory because the People violated the automatic discovery requirements of CPL 245.20 by failing to disclose the names of members of the Guilderland Police Department who were present when he was arrested. As part of their discovery obligations, the People are required to disclose the names of \"all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto\" (CPL 245.20 [1] [d]). The officers in question did not fall within the ambit of the statute. Albany detectives had advised the Guilderland officers that they would be traveling into their jurisdiction in order to arrest defendant. Although the Guilderland officers were present and had been talking to defendant when the Albany detectives arrived to make the arrest, as confirmed to the prosecutor by the lead Albany detective, the Guilderland officers did not have any knowledge about the case, and nothing in the record indicates to the contrary. Thus, the People were not mandated to disclose the officers' names under CPL 245.20 (1) (d) ( see People v Robbins , 206 AD3d 1069 , 1072 [3d Dept 2022], lv denied 39 NY3d 942 [2022]; People v McQueen , 80 Misc 3d 225 , 230 [Crim Ct, Kings County 2023]; compare People v Elmore , 211 AD3d 1536 , 1538 [4th Dept 2022]). Defendant further argues that Supreme Court erred in allowing the People to elicit the statements he made to his parole officer while incarcerated, as these statements were the product of custodial interrogation that were not preceded by Miranda warnings. We disagree. The parole officer greeted defendant in general fashion by asking how he was doing. After receiving a response from defendant that he was \"not great,\" the officer asked a single, innocuous follow-up question, \"why?\" It is clear that the officer, whose sole purpose in visiting defendant was to serve him with parole paperwork, was not questioning defendant about anything having to do with this case and her questions were not \" 'reasonably likely to evoke an incriminating response' \" ( People v Huffman , 61 NY2d 795, 797 [1984], quoting Rhode Island v Innis , 446 US 291, 301 [1980]; accord People v George , 127 AD3d 1496 , 1497 [3d Dept 2015]; see People v Perez , 142 AD3d 410 , 416 [1st Dept 2016], affd 31 NY3d 964 [2018]; People v Taylor , 1 AD3d 623 , 624 [3d Dept 2003], lv denied 1 NY3d 602 [2004]). We have considered defendant's remaining contentions, including his claims that certain evidentiary rulings by Supreme Court were erroneous and deprived him of a fair trial. Having [*6] done so, we find them to be unpersuasive. Egan Jr., J.P., Reynolds Fitzgerald, Fisher and Mackey, JJ., concur. Ordered that the judgment is affirmed."
},
{
"from": "gpt",
"value": "Defendant\ndid not preserve his complaint that the trial court failed to inquire of the\nPeople on the record as to their actual readiness for trial [see CPL 30.30\n(5); 245.20; 245.50 (3)]. And the claim is not \"a mode of proceedings error\nthat is exempt from the preservation requirement [citations omitted]."
}
]
|
2025.01322 | [
{
"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 Wann 2025 NY Slip Op 01322 Decided on March 11, 2025 Appellate Division, First Department 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 and Entered: March 11, 2025 Before: Moulton, J.P., Kennedy, Gesmer, Mendez, Rodriguez, JJ. Ind. No. 1932/19|Appeal No. 3879|Case No. 2022-05464| [*1] The People of the State of New York, Respondent, v Alpha Wann, Defendant-Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Emilia Kind-Musza of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent. Judgment, Supreme Court, Bronx County (Timothy W. Lewis, J.), rendered November 30, 2022, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him to five years of probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on defendant at sentencing, and otherwise affirmed. Under the \"totality of the circumstances,\" defendant's waiver of the right to appeal was invalid ( People v Thomas , 34 NY3d 545 , 559 [2019], cert denied 589 US __, 140 S Ct 2634 [2020]). There is no written waiver in the record and the transcript contains no reference to one. The court's brief colloquy \"did not adequately explain the nature of the right to appeal to defendant\" ( People v Coleman , 225 AD3d 477 , 477 [1st Dept 2024], lv denied 41 NY3d 1001 [2024]). By instructing defendant that \"these days what happens is the prosecutor requires you to waive your right to appeal,\" the court led defendant to \"erroneously believe that the right to appeal is automatically extinguished upon entry of a guilty plea\" ( People v Braithwaite , 73 AD3d 656 , 656 [1st Dept 2010], lv denied 15 NY3d 849 [2010]). Additionally, the court failed to \"make clear that the right to appeal is separate and distinct from the trial rights defendant was waiving by entering a guilty plea\" ( People v Cisse , 228 AD3d 440 , 441 [1st Dept 2024]). Under these circumstances, we find that the appeal waiver was not knowing and voluntary ( see People v Bradshaw , 18 NY3d 257 , 264 [2011]). However, we perceive no basis for reducing the sentence. Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing ( see People v Leggett , 219 AD3d 1253 [1st Dept 2023], lv denied 40 NY3d 1081 [2023]; People v Chirinos , 190 AD3d 434 [1st Dept 2021]). We note that the People do not oppose this relief. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 11, 2025"
},
{
"from": "gpt",
"value": "Under the\n\"totality of the circumstances,\n\" defendant's waiver of the right to appeal\nwas invalid. No written waiver in the record and transcript contained no\nreference to a waiver."
}
]
|
2025.01324 | [
{
"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 McCray 2025 NY Slip Op 01324 Decided on March 11, 2025 Appellate Division, First Department 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 and Entered: March 11, 2025 Before: Moulton, J.P., Kennedy, Gesmer, Mendez, Rodriguez, JJ. Ind. No. 70178/22|Appeal No. 3881|Case No. 2023-00147| [*1] The People of the State of New York, Respondent, v Jeru McCray, Defendant-Appellant. Caprice R. Jenerson, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent. Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J. at motion to controvert search warrant; Neil E. Ross, J. at plea and sentencing), rendered December 13, 2022, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a term of five years, unanimously affirmed. Defendant's waiver of appeal was not knowing, intelligent and voluntary ( see People v Thomas , 34 NY3d 545 [2019], cert denied 589 US __, 140 S Ct 2634 [2020]). At the oral colloquy the court merely asked defendant if he had reviewed and signed the written waiver, and asked him \"did you place your signature here to indicate that you've read the document, that you understand the terms of the waiver of right to appeal, and that you're knowingly and voluntarily waiving your right to appeal?\" The court did not ask any further questions that could verify that defendant understood what he was waiving. The court did not state that the right to appeal is separate and distinct from the trial rights defendant was waiving by taking a guilty plea, and it made no mention of appeal rights that survive a valid waiver. These errors, taken as a whole, could not be cured by a written waiver ( People v Cisse , 228 AD3d 440 , 441 [1st Dept 2024]; see People v Rochester, — AD3d &mdash, 2025 NY Slip Op 00640 [1st Dept 2025]; People v Amparo , — AD3d &mdash, 2025 NY Slip Op 00389 [1st Dept 2025]). However, we find that the court properly denied defendant's motion to controvert the search warrant because the no-knock provision was authorized based on sufficient information supporting the conclusion that defendant might be present with immediate access to firearms when the search warrant was executed ( see People v Brown , 46 AD2d 590, 591 [1st Dept 1975], affd 40 NY2d 183 [1976]). We have considered and rejected defendant's remaining arguments for affirmative relief. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 11, 2025"
},
{
"from": "gpt",
"value": "Court\ndid not state that the right to appeal is separate and distinct from the trial\nrights defendant was waiving by taking a guilty plea, and it made no\nmention of appeal rights that survive a valid waiver."
}
]
|
2025.01677 | [
{
"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 Robinson 2025 NY Slip Op 01677 Decided on March 20, 2025 Appellate Division, Third Department 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 and Entered:March 20, 2025 113047 [*1] The People of the State of New York, Respondent, v Robin S. Robinson, Appellant. Calendar Date:February 13, 2025 Before:Egan Jr., J.P., Clark, Lynch, Powers and Mackey, JJ. Adam G. Parisi, Schenectady, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Nathan M. Bloom of counsel), for respondent. Powers, J. Appeal from a judgment of the County Court of Chemung County (Richard Rich Jr., J.), rendered June 7, 2021, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree. In 2020, defendant was charged by indictment with criminal possession of a weapon in the third degree stemming from the discovery of an assault weapon in his backpack during an arrest pursuant to a warrant on charges emanating from another county. Following an unsuccessful attempt to suppress the results of the search of his backpack incident to his arrest — but prior to a hearing on his motion seeking to suppress his statements to police — defendant accepted a plea offer pursuant to which he pleaded guilty to the reduced charge of attempted criminal possession of a weapon in the third degree. Pursuant to the agreement, defendant agreed to waive his right to appeal and was promised a prison sentence of two years, to be followed by two years of postrelease supervision. County Court thereafter imposed the agreed-upon sentence. Defendant appeals. We affirm. Initially, we disagree with defendant's argument that his waiver of appeal was not valid. The record reflects that County Court thoroughly advised defendant that a waiver of appeal was an express condition of the plea agreement, [FN1] that the waiver was separate and distinct from the trial-related rights that he was forfeiting by pleading guilty, that certain issues survived the waiver and could be raised on appeal and explained the nature of his appellate rights and the rights being waived. Moreover, the court made clear that the appeal waiver would preclude any challenge to the denial of his suppression motion. Defendant confirmed that he had reviewed the waiver with defense counsel, understood it and agreed to it voluntarily. We find that the waiver of appeal entered into during the plea allocution was valid in that it made clear, among other things, that it was not an absolute bar to taking a direct appeal and that some issues were nonwaivable, while providing specific examples of some of those rights that did survive the waiver ( see People v Thomas , 34 NY3d 545 , 558 [2019]; People v Lopez , 6 NY3d 248 , 256 [2006]; People v Joseph , 227 AD3d 1233 , 1234-1235 [3d Dept 2024], lv denied 42 NY3d 1053 [2024]). [FN2] Although it may be the \"better practice\" ( People v Thomas , 34 NY3d at 567; see People v Streater , 207 AD3d 952 , 954 n 1 [3d Dept 2022], lv denied 39 NY3d 942 [2022]), it was not necessary for County Court to read the model colloquy on the waiver of the right to appeal verbatim or specifically delineate all the issues that survive a valid appeal waiver. Provided the defendant is waiving his or her right to appeal knowingly, intelligently and voluntarily, trial judges are not required to follow \"any particular litany when apprising a defendant pleading guilty of the individual rights abandoned\" ( People v Lopez , 6 NY3d at 256; see People v Wint , 222 AD3d 1050 , 1051 [3d Dept [*2] 2023], lv denied 41 NY3d 945 [2024]). As defendant's waiver of appeal was knowing, voluntary and intelligent, he is precluded from challenging the denial of his motion to suppress the physical evidence and the severity of the agreed-upon, lawful sentence ( see People v Sanders , 25 NY3d 337 , 342 [2015]; People v Taylor , 228 AD3d 1144 , 1145 [3d Dept 2024], lv denied 425 NY3d 1022 [2024]). To the extent defendant raises arguments addressed to his motion to suppress his statements to police, he pleaded guilty prior to a Huntley hearing or decision on that motion. As such, he forfeited his statutory right to appeal that issue ( see People v Elmer , 19 NY3d 501 , 509 [2012]; People v Fernandez , 67 NY2d 686, 688 [1986]; People v Awny , 230 AD3d 1464 , 1465 [3d Dept 2024]; People v Lende , 204 AD3d 1224 , 1225 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]). [FN3] Egan Jr., J.P., Clark, Lynch and Mackey, JJ., concur. ORDERED that the judgment is affirmed. Footnotes Footnote 1: Defendant rejected a contemporaneously presented, alternate plea offer, which provided for a longer prison sentence but did not require a waiver of appeal, expressly telling County Court that he would accept the offer with the shorter prison term and \"waive my right to appeal.\" Footnote 2: The record reflects that, at sentencing, defendant reaffirmed his waiver of appeal, confirmed that he had discussed it with defense counsel, was again advised that certain issues survive the waiver and remotely signed a written waiver of appeal. However, this written waiver is not in the record on appeal. Nevertheless, in light of the sufficiency and validity of the oral waiver of appeal, the lack of a written waiver is not relevant ( see People v Washington , 206 AD3d 1278 , 1280 [3d Dept 2022], lv denied 39 NY3d 942 [2022]). Footnote 3: Although defendant requested both Mapp and Huntley hearings, it appears only the former was held considering that the hearing and County Court's ruling focused on the lawfulness of the search of defendant's bag incident to his arrest. Even assuming the suppression ruling was intended to also address and deny defendant's motion to suppress his statements to police at the time of his arrest, his valid appeal waiver likewise precludes any arguments pertaining to the denial of that motion ( see People v Sanders , 25 NY3d at 342; People v Taylor , 228 AD3d at 1145). "
},
{
"from": "gpt",
"value": "Trial\ncourt advised defendant at the time he pleaded guilty that a waiver of\nappeal is not an absolute bar to taking a direct appeal and that some issues,\nexamples of which were mentioned, were nonwaivable. While the better\npractice may be to read the model waiver of the right to appeal verbatim or\nspecifically delineate all the issues that survive a valid appeal waiver, that\nis not required."
}
]
|
2025.01825 | [
{
"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 Steward 2025 NY Slip Op 01825 Decided on March 26, 2025 Appellate Division, Second Department 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 March 26, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department BETSY BARROS, J.P. WILLIAM G. FORD LILLIAN WAN LAURENCE L. LOVE, JJ. 2018-03416 (Ind. No. 10492/14) [*1] The People of the State of New York, respondent, v Anthony D. Steward, appellant. Patricia Pazner, New York, NY (Steven C. Kuza of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Joseph M. DiPietro of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel M. Lewis, J.), rendered January 8, 2018, as amended January 17, 2018, convicting him of criminal possession of a controlled substance in the fourth degree and unlawful possession of marihuana, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial (Barry A. Schwartz, J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence. ORDERED that the appeal from so much of the judgment, as amended, as convicted the defendant of unlawful possession of marihuana is dismissed as academic; and it is further, ORDERED that the judgment, as amended, is reversed insofar as reviewed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the count of the indictment charging the defendant with criminal possession of a controlled substance in the fourth degree. The defendant was convicted, after a nonjury trial, of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]) and unlawful possession of marihuana ( id. former § 221.05, repealed by L 2021, ch 92, § 15). The evidence adduced at trial established that, on the evening of July 8, 2014, police officers stopped a vehicle in which the defendant was a passenger for alleged traffic infractions involving tinted windows and a broken rear taillight. A police officer testified that, during the subject stop, he smelled marihuana and saw a bag of marihuana inside the vehicle. Another officer searched the defendant and recovered, among other things, six bags of crack cocaine, a marihuana cigarette, and a bag of marihuana from the defendant's person. The defendant's conviction of unlawful possession of marihuana became a nullity by operation of law, independently of any appeal, and without requiring any action by this Court ( see CPL 160.50[5]; People v Bensabeur , 225 AD3d 891 , 892). Consequently, the appeal from so much of the judgment, as amended, as convicted the defendant of unlawful possession of marihuana must be dismissed as academic ( see People v Bensabeur , 225 AD3d at 892). The defendant's contention that the Supreme Court erred in denying suppression of all physical evidence because the stop of the vehicle was improper is unpreserved for appellate review ( see CPL 470.05[2]; see People v West , 218 AD3d 798 , 799), and in any event, without merit. Although the Court of Appeals recently concluded that testimony that a vehicle's windows were \"excessively tinted\" was insufficient to establish a basis for a stop based upon a traffic infraction ( People v Nektalov , 42 NY3d 363 , 366 [internal quotation marks omitted]), in this case, a police officer further testified that one of the vehicle's rear taillights was broken with the light from a white bulb emitting light through the crack, indicative of a \"defective or inoperable brake light\" ( People v John , 119 AD3d 709 , 710), which was a sufficient basis for the stop. Moreover, the court properly concluded that the subsequent search of the defendant's person was supported by probable cause ( see People v Clements , 221 AD3d 1023 , 1025; People v Henderson , 197 AD3d 663 , 664). Viewing the evidence adduced at the trial in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a controlled substance in the fourth degree 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 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410; People v Bleakley , 69 NY2d 490, 494). Upon reviewing the record here, we are satisfied that the verdict of guilt as to that count was not against the weight of the evidence ( see People v Romero , 7 NY3d 633 ). However, the Supreme Court, in rendering its verdict, impermissibly shifted the burden of proof to the defendant. The defendant asserted at trial that he had been framed by the police. In delivering its verdict, the court ruled that \"the credible testimony before me does not persuade this Court beyond a reasonable doubt that [the] defendant was in fact framed. And that being so . . . I find [the] defendant guilty.\" The court's finding \"reverses the constitutionally required principles that the defense bears no burden and that it is the prosecution that must introduce evidence sufficient to persuade the fact finder, beyond a reasonable doubt, of the defendant's guilt\" ( People v Antommarchi , 80 NY2d 247, 252; see People v David , 41 NY3d 90 , 97). Accordingly, the judgment, as amended, must be reversed insofar as reviewed, and we remit the matter to the Supreme Court, Queens County, for a new trial on the count of the indictment charging the defendant with criminal possession of a controlled substance in the fourth degree. In light of our determination, we need not reach the parties' remaining contentions. BARROS, J.P., FORD, WAN and LOVE, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court"
},
{
"from": "gpt",
"value": "Defendant's conviction after a non-jury trial is reversed and a new trial\nordered. Defendant contended that he had been framed by the police. In\ndelivering its verdict, the court ruled that \"the credible testimony before\nme does not persuade this Court beyond a reasonable doubt that defendant\nwas in fact framed. And that being so . . . I find defendant guilty.\n\" The\ncourt's finding \"reverses the constitutionally required principles that the\ndefense bears no burden and that it is the prosecution that must introduce\nevidence sufficient to persuade the fact finder, beyond a reasonable doubt,\nof the defendant's guilt.\n\""
}
]
|
2025.50344 | [
{
"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\n[*1] People v Palacios (Eduardo) 2025 NY Slip Op 50344(U) Decided on March 20, 2025 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on March 20, 2025 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Tisch, J.P., James, Perez, JJ. &em; The People of the State of New York, Respondent, - against Eduardo Palacios, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Mary V. Rosado, J.), rendered April 18, 2016, after a jury trial, convicting him of driving while intoxicated and leaving the scene of an incident without reporting, and imposing sentence. Per Curiam. Judgment of conviction (Mary V. Rosado, J.), rendered April 18, 2016, affirmed. Defendant was convicted, after a jury trial, of driving while intoxicated ( see Vehicle and Traffic Law § 1192 [3]) and leaving the scene of an incident without reporting ( see Vehicle and Traffic Law § 600 [1] [a]). Although not challenged by defendant, we find that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. An eyewitness testified that defendant crashed his vehicle into the witness's vehicle, and then fled the scene on foot, while staggering and appearing disoriented. The police officers' testimony demonstrated that when they encountered defendant shortly thereafter, he exhibited classic signs of intoxication, such as watery and bloodshot eyes, an unsteady gait, and a strong odor of alcohol on his breath. Defendant admitted to the officers that he had been drinking and that he felt \"twisted\"; and they recovered an open bottle of vodka from inside his vehicle. Defendant also refused to take a breath test ( see People v Varriale , 238 AD2d 208 [1997]). A trial court has great latitude in limiting the scope and duration of counsel's closing statements ( see Herring v New York , 422 US 853, 862 [1975]; People v Brown , 136 AD2d 1, 16 [1988], lv denied 72 NY2d 857 [1988] , cert denied 488 US 897 [1988]) and, in this case, the trial court did not improvidently exercise its discretion. During defense counsel's summation, the court inquired \"is 10 more minutes sufficient time, or do you need more?\" Counsel requested a \"little more.\" Subsequently, the court stated \"counsel please start wrapping up\" and later stated \"Counsel, five minutes.\" Defense counsel then completed summation. Here, the court's limitation, which was made after first inquiring about how much more time counsel needed to complete summation and then, after warning counsel to \"start wrapping [*2] up,\" was a sound exercise of discretion ( see People v Love , 244 AD2d 431, 431 [1997], lv denied 91 NY2d 876 [1997] ; People v Brown, 136 AD2d at 16-17). People v Gibian (76 AD3d 583 , 588 [2010], lv denied 15 NY3d 920 [2010]), heavily relied upon by defendant, which involved a \"sudden midclosing imposition of a time limit\" on summation, without any advance warning of any limit, is therefore distinguishable. In any event, even assuming error, it was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt ( People v Crimmins , 36 NY2d 230, 241-242 [1975]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: March 20, 2025"
},
{
"from": "gpt",
"value": "During defense counsel's summation, the court inquired\n\"is 10 more minutes sufficient time, or do you need more?\" Counsel\nrequested a \"little more.\n\" The court later asked the attorney to \"please start\nwrapping up\" and subsequently gave him a 5-minute caution, the attorney\nthen finished his summation. This was a sound exercise of judicial\ndiscretion and clearly distinguishable from People v Gibian, 76 AD3d\n583, lv denied 15 NY3d 920 (2010),\n\"which involved a 'sudden mid-\nclosing imposition of a time limit' on summation, without any advance\nwarning of any limit.\n\""
}
]
|
2025.01262 | [
{
"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 Hinchey 2025 NY Slip Op 01262 Decided on March 6, 2025 Appellate Division, Third Department 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 and Entered:March 6, 2025 113535 [*1] The People of the State of New York, Respondent, v Jason Hinchey, Appellant. Calendar Date:January 9, 2025 Before:Garry, P.J., Egan Jr., Aarons, Pritzker and Lynch, JJ. Jane M. Bloom, Monticello, for appellant. Emmanuel C. Nneji, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent. Garry, P.J. Appeal from a judgment of the County Court of Ulster County (James Farrell, J.), rendered March 11, 2022, upon a verdict convicting defendant of the crimes of aggravated family offense (three counts) and bail jumping in the second degree. Following a domestic dispute on March 28, 2019, defendant was charged by indictment with three counts of aggravated family offense for the specified offenses of criminal obstruction of breathing or blood circulation (count 1), assault in the third degree (count 2) and unlawful imprisonment in the second degree (count 3). He later failed to appear in court and was charged, in a separate indictment, with bail jumping in the second degree. The People's motion to consolidate the indictments for trial was granted, and, following a jury trial, defendant was convicted as charged. County Court sentenced him to a prison term of 1⅓ to 4 years for each conviction and directed that the sentences on counts 2 and 3 run concurrently to each other but consecutively to count 1 and that his sentence for bail jumping run consecutively to counts 1 through 3, resulting in an aggregate prison term of 4 to 12 years. [FN1] Defendant appeals. We initially reject the argument that County Court abused its discretion in granting the People's motion to consolidate the indictments for trial. Joinder of multiple offenses is authorized when, \"[e]ven though based upon different criminal transactions, 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\" (CPL 200.20 [2] [b]; see CPL 200.20 [4]; People v Lane , 56 NY2d 1, 7 [1982]). Here, proof of the aggravated family offenses would have been relevant and admissible to establish defendant's motive in a trial on the later bail jumping charge, and proof of defendant's bail jumping would have been relevant and admissible as evidence of his consciousness of guilt in a trial on the aggravated family offenses ( see People v Contreras , 191 AD2d 235, 236 [1st Dept 1993], lv denied 82 NY2d 716 [1993], cert denied 511 US 1040 [1993]; cf. People v Watkins , 180 AD3d 1222, 1234 [3d Dept 2020], lv denied 35 NY3d 1030 [2020]; People v Torra , 309 AD2d 1074, 1075 [3d Dept 2003], lv denied 1 NY3d 581 [2003]; see generally People v Doe , 148 Misc 2d 120, 121-124 [Sup Ct, NY County 1990]). We share County Court's view that defendant failed to make any persuasive argument of undue prejudice arising from consolidation ( see People v Torra , 309 AD2d at 1075), particularly when considering that defendant ultimately elected to assert defenses regarding his motive and intent ( see Penal Law §§ 25.00, 35.15; 215.59). We also discern no issue with respect to County Court's handling of the prior bad act evidence — specifically, evidence of three prior incidents of physical violence and [*2] /or verbal threats by defendant toward the victim from within the year preceding the subject March 28, 2019 incident, as well as a March 13, 2019 conviction for his false imprisonment of her as part of one of those incidents. This prior behavior provided relevant background as to the dynamic between defendant and the victim and was directly relevant to defendant's motive and intent, again notably in the face of his justification defense as to counts 2 and 3 ( see People v Dorm , 12 NY3d 16 , 19 [2009]; People v Pitt , 170 AD3d 1282 , 1284 [3d Dept 2019], lv denied 33 NY3d 1072 [2019]; People v Knox , 167 AD3d 1324 , 1325-1326 [3d Dept 2018], lv denied 33 NY3d 950 [2019]; see generally People v Molineux , 168 NY 264, 293 [1901]). [FN2] We further agree with the court that the probative value of the evidence outweighed any unfair prejudice to defendant, notwithstanding the similarity between the prior bad acts and the charged conduct, and any such prejudice was minimized by timely and appropriate limiting instructions ( see People v Dorm , 12 NY3d at 19; People v Cole , 215 AD3d 1064 , 1065-1066 [3d Dept 2023], lv denied 40 NY3d 927 [2023]; People v LaDuke , 204 AD3d 1083 , 1088 [3d Dept 2022], lv denied 38 NY3d 1072 [2022]; compare People v Elmy , 117 AD3d 1183 , 1186-1187 [3d Dept 2014]; People v Westerling , 48 AD3d 965 , 968 [3d Dept 2008]). The court's Sandoval ruling, concerning the same evidence, was also a provident exercise of discretion given defendant's demonstrated determination to further his self-interest in derogation of the interests of others and the attendant possibility that he would choose to act similarly on a witness stand ( see People v Sandoval , 34 NY2d 371, 377 [1974]; see also People v Hayes , 97 NY2d 203, 205-206, 208 [2002]). Defendant lastly argues that County Court was required to run his sentences on counts 1 through 3 concurrently. We disagree. Although the imposition of concurrent or consecutive sentences is a matter generally entrusted to the discretion of the court ( see Penal Law § 70.25), Penal Law § 70.25 (2) does mandate that concurrent sentences be imposed \"(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other\" ( People v Laureano , 87 NY2d 640, 643 [1996]; accord People v Brahney , 29 NY3d 10 , 14 [2017]; People v Couser , 28 NY3d 368 , 375 [2016]). \"[T]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap\" ( People v Rodriguez , 25 NY3d 238 , 244 [2015] [internal quotation marks and citation omitted]; see People v Brahney , 29 NY3d at 14; People v Ramirez , 89 NY2d 444, 451 [1996]). In other words, \"the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense [*3] (under the second prong)\" ( People v Laureano , 87 NY2d at 643 [emphasis omitted]; see People v Wright , 19 NY3d 359 , 363-364 [2012]; People v Day , 73 NY2d 208, 211 [1989]). If it is neither, then the People have satisfied their burden to demonstrate the legality of consecutive sentencing ( see People v Brahney , 29 NY3d at 14-15; People v Laureano , 87 NY2d at 643; People v Day , 73 NY2d at 211). The specified offenses underlying the aggravated family offense counts are criminal obstruction of breathing or blood circulation, assault in the third degree and false imprisonment in the second degree ( see generally Penal Law § 240.75 [1]; CPL 530.11 [1] [e]). We compare the first two in evaluating County Court's consecutive sentencing decision. As charged here, the actus reus — or \"[a]ct,\" meaning \"bodily movement\" (Penal Law § 15.00 [1]; see People v McKnight , 16 NY3d 43 , 48 [2010]) — that constitutes criminal obstruction of breathing or blood circulation is applying pressure to the throat or neck of another ( see Penal Law § 121.11 [a]). The actus reus required for the manner of assault in the third degree charged here is conduct causing physical injury to another ( see Penal Law § 120.00 [1]), \"[p]hysical injury\" being defined as either \"impairment of physical condition or substantial pain\" (Penal Law § 10.00 [9]). Although the Penal Law requires \"no particular degree\" of pain or impairment to satisfy the element of physical injury ( People v McDowell , 28 NY2d 373, 375 [1971]), objectively, the application of pressure contemplated by Penal Law § 121.11 cannot satisfy it ( see People v Chiddick , 8 NY3d 445 , 447 [2007]; People v Lewis , 294 AD2d 847, 847 [4th Dept 2002]); indeed, the obstruction of breathing offense was created to provide redress for the suffering endured by victims of domestic violence whose batterers employed such methods of control but caused no demonstrable pain, physical trauma or injury ( see People v Figueroa , 40 Misc 3d 1010, 1012-1018 [City Ct, City of Rye 2013]; compare Penal Law §§ 121.12 [requiring that a person commit the crime of criminal obstruction of breathing or blood circulation and thereby cause \"stupor, loss of consciousness for any period of time, or any other physical injury or impairment\"], 121.13 [requiring that a person commit the crime of criminal obstruction of breathing or blood circulation and thereby cause \"serious physical injury\"]). The statutory overlap addressed by Penal Law § 70.25 (2) is therefore not present here ( see People v McGovern , 42 NY3d 532 , 536-537 [2024]; compare People v Brahney , 29 NY3d at 16; People v Sturkey , 77 NY2d 979, 980 [1991]), and the imposition of consecutive sentences was thus left to the discretion of County Court ( see People v Day , 73 NY2d at 212). [FN3] To the extent that the court's exercise of that discretion is challenged, we find no abuse thereof under these facts, where defendant repeatedly punched the victim in her head before placing his hand around her throat and covering her face [*4] with a pillow ( see generally People v Ramirez, 89 NY2d at 450). Egan Jr., Aarons, Pritzker and Lynch, JJ., concur. ORDERED that the judgment is affirmed. Footnotes Footnote 1: To the extent that the Criminal Disposition Report in the record reflects otherwise, we rely on the unambiguous sentencing transcript. Footnote 2: As defendant acknowledges, in the absence of a stipulation, his March 13, 2019 conviction was also admissible to satisfy an essential element of the aggravated family offense counts ( see CPL 200.63). Footnote 3: In light of our conclusion that there is no overlap under either prong of Penal Law § 70.25 (2), we need not address defendant's argument as to whether his offenses in this single criminal transaction should be deemed separate and distinct acts for restrictive sentencing purposes ( see generally People v Brahney , 29 NY3d at 14-15). "
},
{
"from": "gpt",
"value": "In his\nopening, defense counsel told the jury that the police investigation was\ninadequate and told the jury that the defendant was married and had a\n\"strong relationship\" with his wife that was focused on family.\n\" It was\nappropriate for the prosecutor to elicit information from the investigator about the defendant's marriage since it was a fair response to defense\ncounsel's trial strategy and attacks on the credibility and motives of the\nprosecution's witnesses."
}
]
|
2025.01101 | [
{
"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 Anderson 2025 NY Slip Op 01101 Decided on February 26, 2025 Appellate Division, Second Department 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 February 26, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department FRANCESCA E. CONNOLLY, J.P. ROBERT J. MILLER LOURDES M. VENTURA PHILLIP HOM, JJ. 2023-03666 (Ind. No. 72234/21) [*1] The People of the State of New York, respondent, v Tyler Anderson, appellant. Andrea S. Ferrante, Staten Island, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Jeffrey Eng of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond L. Rodriguez, J.), rendered March 15, 2023, convicting him of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the seventh degree, and reckless driving, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. Contrary to the defendant's contention, the Supreme Court did not err in permitting the admission into evidence of certain surveillance videos, ballistics evidence, and two 911 calls. This evidence was \"relevant to the very same crime for which the defendant [was] on trial\" ( People v Duchi , 176 AD3d 968 , 968 [internal quotation marks omitted]; see People v Frumusa , 29 NY3d 364 , 370) and provided a complete \"narrative of the events charged in the indictment\" as well as \"necessary background information\" ( People v Jones , 206 AD3d 671 , 673 [internal quotation marks omitted]; see People v Bonich , 208 AD3d 679 , 680; People v Martinez , 201 AD3d 658 , 659). Moreover, any prejudice to the defendant was minimized by the court's limiting instructions ( see People v Blackwell , 219 AD3d 619 , 621; People v Taylor , 210 AD3d 807 , 808; People v Sterling , 162 AD3d 914 , 914). The defendant's contention that he was deprived of his right to a fair trial due to improper remarks made by the prosecutor during summation is without merit. The challenged remarks were fair response to arguments made by defense counsel in summation ( see People v Bethea , 159 AD3d 710 , 712; People v Nanand , 137 AD3d 945 , 947; People v Roscher , 114 AD3d 812 , 813). The defendant's contention that the Supreme Court violated his Sixth Amendment right of confrontation by limiting defense counsel's cross-examination of a certain witness is without merit. Although a criminal defendant is guaranteed the right to confront adverse witnesses through cross-examination ( see US Const 6th Amend; NY Const, art I, § 6), \"these rights do not guarantee unfettered cross-examination\" ( People v Delgado , 221 AD3d 909 , 911; see People v Agosto , 203 AD3d 841 , 842) and do not give criminal defendants \"carte blanche to circumvent the rules of evidence\" ( People v Hayes , 17 NY3d 46 , 53 [internal quotation marks omitted]). \"The trial court [*2] has broad discretion to limit the scope of cross-examination when the questions are irrelevant or only marginally relevant, concern collateral issues, or pose a danger of misleading the jury\" ( People v Wingate , 184 AD3d 738 , 739 [internal quotation marks omitted]; see People v Jones , 184 AD3d 751 , 753; People v Herrera-Machuca , 181 AD3d 901 , 902). Here, the court did not limit defense counsel's line of questioning, and instead, defense counsel voluntarily withdrew the questions. In any event, the limiting of the defense counsel's questioning of a certain witness would have been provident to avoid inquiry into a speculative and remote matter ( see People v Jones , 184 AD3d at 753). The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80). CONNOLLY, J.P., MILLER, VENTURA and HOM, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court"
},
{
"from": "gpt",
"value": "A\ndefendant is not guaranteed unfettered cross-examination by the 6th\nAmendment.\n\"The trial court has broad discretion to limit the scope of\ncross-examination when the questions are irrelevant or only marginally\nrelevant, concern collateral issues, or pose a danger of misleading the jury\"\n(People v Wingate, 184 AD3d 738)."
}
]
|
2025.00236 | [
{
"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 Kerr 2025 NY Slip Op 00236 [234 AD3d 794] January 15, 2025 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2025 [*1] The People of the State of New York, Respondent, v Kaeshawn Kerr, Appellant. Rosenberg Law Firm, Brooklyn, NY (Jonathan Rosenberg of counsel), for appellant. David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Orange County (Hyun Chin Kim, J.), rendered March 3, 2022, convicting him of criminal possession of a weapon in the second degree and criminal possession of a forged instrument in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is reversed, on the law, and a new trial is ordered. 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 [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, 410 [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]). Nevertheless, the defendant is entitled to a new trial because the County Court improperly conducted the trial in the defendant's absence. \"Before proceeding in [a] defendant's absence, the court [must make an] inquiry and recite[ ] on the record the facts and reasons it relied upon in determining that [the] defendant's absence was deliberate\" ( People v Brooks , 75 NY2d 898, 899 [1990]; see People v Amato , 172 AD2d 545, 545 [1991]). Here, the court failed to provide an adequate statement of reasons or bases for its determination that the defendant's absence from the trial was deliberate. Although the court stated that it was basing its determination on the defendant's \"history\" and \"conduct within the last few days,\" it failed to detail the history and conduct upon which its determination was based ( see People v Johnson , 154 AD3d 777 , 778-780 [2017]; People v Callahan , 134 AD3d 1432 , 1433 [2015]). Accordingly, we reverse the judgment and order a new trial. Since there must be a new trial, we note that, although the issue is unpreserved for appellate review ( see CPL 470.05 [2]), the defendant correctly contends that the County Court should have instructed the jury on the home or place of business exception with regard to the count of criminal possession of a weapon in the second degree ( see People v Reid , 212 AD3d 845 , 847-848 [2023]; People v Martin , 36 AD3d 717 , 718 [2007]). [*2] The defendant's remaining contention need not be reached in light of our determination. Chambers, J.P., Christopher, Love and Hom, JJ., concur."
},
{
"from": "gpt",
"value": "New trial\nordered because the trial was improperly conducted without the\ndefendant's presence.\n\"Here, the court failed to provide an adequate\nstatement of reasons or bases for its determination that the defendant's\nabsence f rom the trial was deliberate. Although the court stated that it was\nbasing its determination on the defendant's 'history' and 'conduct within the\nlast few days,\n' it failed to detail the history and conduct upon which its\ndetermination was based (see People v Johnson, 154 AD3d 777; People v\nCallahan, 134 AD3d 1432).\n\""
}
]
|
2025.01321 | [
{
"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 Guzman 2025 NY Slip Op 01321 Decided on March 11, 2025 Appellate Division, First Department 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 and Entered: March 11, 2025 Before: Moulton, J.P., Kennedy, Gesmer, Mendez, Rodriguez, JJ. Ind No. 1306/21|1306/21|Appeal No. 3875|Case No. 2022-04641| [*1] The People of the State of New York, Respondent, v Alexander Guzman, Defendant-Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Leanna J. Duncan of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (David M. Cohn of counsel), for respondent. Judgment, Supreme Court, Bronx County (Steven Hornstein, J.), rendered October 17, 2022, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a five-year term of probation, unanimously affirmed. Defendant's valid waiver of his right to appeal forecloses both his suppression claim ( see People v Thomas , 34 NY3d 545 , 565 [2019], cert denied 589 US __, 140 S Ct 2634 [2020]; People v Guerrero , 200 AD3d 432 [1st Dept 2021], lv denied 38 NY3d 950 [2020]) and his claim pursuant to New York State Rifle & Pistol Assn. v Bruen , 597 US 1 [2022])( see People v Johnson , 225 AD3d 453 [1st Dept 2024], lv granted 42 NY3d 939 [2024]). As an alternative holding, we find that both arguments lack merit. The officer's search of defendant's fanny pack was supported by reasonable suspicion where defendant fled from police who stopped him based on the violation of not wearing a helmet while riding on an ATV (all-terrain vehicle), defendant's fanny pack appeared to be weighed down by a heavy object or objects, defendant reached toward the bag as he fled, and he resisted being handcuffed when the officers caught up to him ( see People v Chestnut , 51 NY2d 14, 23 [1980], cert denied 449 US 1018 [1980]; People v Watkins , 226 AD2d 173,174 [1st Dept 1996], lv denied 88 NY2d 996 [1996]). With regard to defendant's Second Amendment claim based on Bruen , we find that defendant lacked standing to challenge New York's gun licensing scheme because he did not apply for a gun license ( see Johnson , 225 AD3d at 455; United States v Decastro , 682 F3d 160, 164 [2d Cir 2012], cert denied 568 US 1092 [2013]) and that he has failed to establish that his conviction is unconstitutional under Bruen ( see People v Cherif , 220 AD3d 543 [1st Dept 2023], lv denied 40 NY3d 1079 [2023]; People v Adames , 216 AD3d 519 , 520 [1st Dept 2023], lv denied 40 NY3d 949 [2023]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 11, 2025"
},
{
"from": "gpt",
"value": "Valid\nwaiver of appeal forecloses appellate consideration of his claim that his\nconviction cannot stand in light of o New York State Rifle & Pistol Assn. v\nBruen, 597 US 1 (2022). In any event,\n\"defendant lacked standing to\nchallenge New York's gun licensing scheme because he did not apply for a\ngun license [citations omitted], and he has failed to establish that his\nconviction is unconstitutional under Bruen (see People v Cherif, 220\nAD3d 543 [1st Dept 2023], lv denied 40 NY3d 1079 [2023]; People v\nAdames, 216 AD3d 519, 520 [1st Dept 2023], lv denied 40 NY3d 949\n[2023]).\n\""
}
]
|
2025.01875 | [
{
"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 Gomez 2025 NY Slip Op 01875 Decided on March 27, 2025 Appellate Division, First Department 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 and Entered: March 27, 2025 Before: Kern, J.P., Friedman, Kapnick, Mendez, Higgitt, JJ. Ind No. 5328/14|Appeal No. 3996-3996A-3996B|Case No. 2017-3037 2019-04865 2023-05306| [*1] The People of the State of New York, Respondent, v Heriberto Gomez, Defendant-Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Frances Weil of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent. Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered April 7, 2017, as amended April 21, 2017, convicting defendant, after a jury trial, of seven counts of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent prison terms of 16 years to life, unanimously affirmed. Order, same court and Justice, entered on or about April 10, 2019, which denied defendant's CPL 440.20 motion to set aside the sentence, unanimously affirmed. Order, same court (Ruth Pickholz, J.), entered on or about June 2, 2023, which denied defendant's second CPL 440.20 motion to set aside the sentence, unanimously affirmed. Defendant was not denied the right to be present for a material stage of his trial when counsel and the court had a preliminary, informal conference addressing potential jury charges ( see People v Collins , 99 NY2d 14, 19 [2002]; People v Davis , 172 AD2d 273, 273 [1st Dept 1991], lv denied 78 NY2d 921 [1991]). The informal conference addressed a purely legal matter, namely whether there was a reasonable view of the evidence presented thus far supporting an intoxication instruction ( see Collins at 19). In any event, the court made no determinations at that time, and shortly after the informal conference, it summarized the discussions for defendant, at which time defendant was offered an opportunity to speak with counsel and could have provided input if warranted ( see People v Johnson , 27 AD3d 238 , 238 [1st Dept 2006], lv denied 7 NY3d 790 [2006]). The informal conference was merely preliminary to a subsequent proceeding in court which was held in defendant's presence, and defendant had an opportunity to provide meaningful input at that subsequent time as well ( see People v Torres , 61 AD3d 489 , 490 [1st Dept 2009], lv denied 12 NY3d 921 [2009]). The court properly denied defendant's request to submit burglary in the third degree as a lesser included offense, since there was no reasonable view of the evidence that would support a finding that defendant committed only the lesser offense but not the greater ( see generally People v Glover , 57 NY2d 61, 63 [1982]). More specifically, defendant failed to present any reasonable view of the evidence that these buildings' common areas, which included the building lobbies, basements and a courtyard, were inaccessible to the residents of the buildings so as to render this a burglary of a building but not a \"dwelling\" ( see People v Joseph , 28 NY3d 1003 , 1006 [2016]; People v Carlucci , 196 AD3d 418 , 419 [1st Dept 2021], lv denied 37 NY3d 1026 [2021]). Defendant's argument that the court should have issued an expanded charge concerning the meaning of the term \"dwelling\" is unpreserved, and we decline to consider it in the interest of justice. As an alternative holding, we find that the court properly declined to issue the expanded charge, as there was no evidence reasonably supporting it ( see generally People v J.L., 36 NY3d 112 , 119 [2020]; People v Jones [*2] , 73 NY2d 902, 903 [1989]). We have considered and rejected defendant's constitutional challenges to his sentence and his claim that his sentence is irrational ( see People v Cortes , 193 AD3d 659 , 660 [1st Dept 2021], lv denied 37 NY3d 964 [2021]; People v Corey , 190 AD3d 620 , 621 [1st Dept 2021], lv denied 37 NY3d 964 [2021]; People v Johnson , 38 AD3d 1057 , 1059 [3d Dept 2007]). We do not reach defendant's arguments concerning whether the United States Supreme Court's holding in Erlinger v United States (602 US 821 [2024]) renders unconstitutional the sentencing procedures used to determine that he was a persistent violent felony offender. Defendant did not contest the relevant periods of incarceration as a threshold matter ( see People v Hernandez , __ NY3d __, 2025 NY Slip Op 00904 [2025]); and, defendant waived the issue and relinquished the argument that the People had not established the dates of incarceration ( see People v Stanton , 234 AD3d 602 [1st Dept 2025]). We also note that even if defendant had established a constitutional violation premised on Apprendi v New Jersey (530 US 466 [2000]), such violation would be subject to harmless error review ( see People v Kozlowski , 11 NY3d 223 , 250 [2008], cert denied 556 US 1282 [2009]). We find that any alleged error in this case would be harmless.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 27, 2025"
},
{
"from": "gpt",
"value": "\"Defendant was not denied the right to be present for a material stage of\nhis trial when counsel and the court had [an in-chambers] preliminary,\ninformal conference addressing potential jury charges,\n\" a purely legal\nmatter that was not decided until the subsequent in-court proceeding in\ndefendant's presence."
}
]
|
2025.00056 | [
{
"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 Wells 2025 NY Slip Op 00056 [234 AD3d 447] January 7, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2025 [*1] The People of the State of New York, Respondent, v Carl D. Wells, Appellant. Caprice R. Jenerson, Office of the Appellate Defender, New York (Ronald Zapata of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent. Judgment, Supreme Court, New York County (Gregory Carro, J., motion to consolidate; Jill Konviser, J., 2016 pro se inquiry; Daniel Conviser, J., 2019 proceedings, trial, and sentence), rendered February 26, 2019, convicting defendant, after a jury trial, of four counts of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed. The court did not deprive defendant of his right to represent himself. Defendant never made an unequivocal request to do so, as the context reveals that he did not want to proceed pro se for all purposes ( see e.g. People v Ramos , 35 AD3d 247 [1st Dept 2006], lv denied 8 NY3d 924 [2007]). Rather than demonstrating a \"definitive commitment to self-representation\" ( People v LaValle , 3 NY3d 88 , 106 [2004]), the court's extensive inquiry revealed that defendant wanted a co-counsel, and that his intention was to avoid trial altogether by \"litigat[ing the case] to a dead end.\" Further, the court did not deny his request outright. Instead, the court deferred defendant's request ( see People v Little , 151 AD3d 531 , 532 [1st Dept 2017], lv denied 30 NY3d 951 [2017]). To the extent that he made an unequivocal request to proceed pro se, he abandoned his application ( see People v Hirschfeld , 282 AD2d 337, 339 [1st Dept 2001], lv denied 96 NY2d 919 [2001], cert denied 534 US 1082 [2002]; compare People v Trammell , 183 AD3d 155 , 161-162 [1st Dept 2020], lv denied 35 NY3d 1071 [2020]). Defendant did not preserve his claim that the consolidation of the indictments or the court's instructions denied him a fair trial ( see People v Kello , 96 NY2d 740, 743-744 [2001]), or his claims that the court's instructions were inadequate or that the consolidation order limited the People's theory of the case. We decline to review his claims in the interest of justice. As an alternative holding, we reject them on the merits ( see People v Scott , 276 AD2d 380 [1st Dept 2000], lv denied 96 NY2d 738 [2001]). In any event, any error in denying severance was harmless in light of the overwhelming evidence of defendant's guilt, which included defendant's confession as to each robbery ( see People v Crimmins , 36 NY2d 230 [1975]). Defendant has not preserved his claim that the court's modification of its Sandoval ruling denied him a fair trial ( see People v Grant , 7 NY3d 421 , 424 [2006]). He also waived his claim by repeatedly stating that he wanted to tell the jury about the facts underlying his claims and admitting that he had intentionally opened the door ( see People v Jones , 256 AD2d 30, 31 [1st Dept 1998], lv denied 93 NY2d 900 [1999]). We decline to review his claim in the interest of justice. As an alternative holding, we reject it on the merits. When a defendant takes advantage of a Sandoval ruling to testify to facts that are \"in conflict with the precluded evidence,\" the defense thereby \"opens the door\" on the issue, and is [*2] \"properly subject to impeachment by the prosecution's use of the otherwise precluded evidence\" ( People v Fardan , 82 NY2d 638, 646 [1993]; see People v Leach , 125 AD3d 568 , 569 [1st Dept 2015], lv denied 25 NY3d 1074 [2015], cert denied 577 US 1033 [2015]). Here, defendant used the opportunity of his counsel's general question to create the misleading impression that he was innocent of any wrongdoing and had been victimized by the criminal justice system, and the unsolicited nature of the response made clear that he did so intentionally. When asked by his counsel whether he had a gun in December 2006, he did not just answer \"no,\" but portrayed himself, at length, as a person who did not like guns and had never possessed a gun. Thus, the court providently exercised its discretion in determining that defendant had opened the door and allowed the People to ask defendant the precluded evidence of the facts underlying his 1992 robbery conviction, which led to his parole in 2004 and his incarceration in New York in 2005, and involved the display of what appeared to be a firearm. Defendant has not preserved his claim that the court improperly failed to provide a limiting instruction at the time that evidence was admitted, and the court's final instruction advised the jury of the proper use of such evidence. Defendant's challenges to the prosecutor's summation are unpreserved, and we decline to review his unpreserved claims in the interest of justice. As an alternative holding, we find no basis for reversal ( see People v Overlee , 236 AD2d 133, 143-144 [1st Dept 1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro , 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]). Under New York law, \"[t]rial courts must retain appropriate discretion to control their courtrooms and trial proceedings,\" which necessarily includes \"decisions pertaining to courtroom security\" ( People v Gamble , 18 NY3d 386 , 396-397 [2012]). Here, the court providently exercised its discretion when it situated a court officer behind defendant, a court officer by the door, and a court officer in the corner of the courtroom while defendant was on the stand. Further, as requested by defense counsel, the court instructed the jury that it was \"standard procedure\" to place a court officer behind a defendant while he testifies, and that the jurors should not \"assign any significance\" to it. A court officer's presence behind defendant for that limited time would not \"telegraph[ ] to the jury that defendant was a dangerous individual\" ( see id. at 397). The People were not required to call every analyst involved in the DNA testing in this case. A defendant's right to confrontation is not violated simply because an expert DNA analyst refers to data gathered by nontestifying technicians ( see People v Brown , 13 NY3d 332 , 340 [2009]). Here, the analyst testified about her review of the data and her independent conclusions based thereon. There was no Confrontation Clause violation because [*3] the expert analyst's testimony demonstrated her own \"independent analysis\" of the data to make a comparison, and the analysis was not merely \"a conduit for the conclusions of others\" ( People v John , 27 NY3d 294 , 315 [2016]; see People v Jordan , 40 NY3d 396 , 402 [2023]). We find unavailing defendant's contention that, in sentencing him as a mandatory persistent violent felony offender, the court erred in accepting his 1990 and 1992 convictions without affording him an adjournment to obtain certain transcripts and a hearing to determine whether the conviction was unconstitutional. A defendant who challenges the constitutionality of his prior conviction bears the burden to overcome \"the presumptions of the validity and regularity of the previous felony conviction[ ] . . . by substantial evidence to the contrary\" ( People v Harris , 61 NY2d 9, 15-16 [1983]; People v Diggins , 45 AD3d 266 , 267-268 [1st Dept 2007], affd 11 NY3d 518 [2008]). Defendant has not satisfied his burden of overcoming the presumptive constitutionality of his 1990 plea, and we note that we previously rejected defendant's claim that his 1992 conviction was unconstitutional ( see People v Wells , 221 AD2d 281 [1st Dept 1995], lv denied 87 NY2d 978 [1996]). We perceive no basis for reducing the sentence. We have considered defendant's pro se claims and find them unavailing. Concur—Singh, J.P., Kapnick, Scarpulla, Pitt-Burke, O'Neill Levy, JJ."
},
{
"from": "gpt",
"value": "No Confrontation Clause violation because the DNA analyst's testimony\ndemonstrated her own \"independent analysis\" of the data to make a\ncomparison, and the analysis was not merely \"a conduit for the\nconclusions of others.\n\""
}
]
|
2025.00901 | [
{
"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 Williams 2025 NY Slip Op 00901 Decided on February 18, 2025 Court of Appeals 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 February 18, 2025 No. 10 [*1] The People & c., Respondent, v Raymond Williams, Appellant. Ayushe Misra, for appellant. Anna Notchick, for respondent. MEMORANDUM: The Appellate Division order should be affirmed. Defendant contends that the evidence was legally insufficient to support his conviction of burglary in the third degree (Penal Law § 140.20). We reject that contention. \"A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, '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], quoting People v Acosta , 80 NY2d 665, 672 [1993]). \"A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof\" ( id. ). Here, defendant was charged with burglary in the third degree based on his trespass on the premises of a CVS store with the intent to steal Red Bull energy drinks. A person is guilty of burglary in the third degree when such person \"knowingly enters or remains unlawfully in a building with intent to commit a crime therein\" (Penal Law § 140.20). With respect to the knowledge element, a rational jury could have found that defendant knew his entry into the store was unlawful based on the trespass notice that defendant signed, barring him from entering any CVS location, as well as the testimony of the CVS employee who explained the trespass notice to defendant ( see People v [*2] Magnuson , 177 AD3d 1089 , 1091 [3d Dept 2019]; People v Pearson , 163 AD3d 446 , 447 [1st Dept 2018]; People v Polite , 302 AD2d 227, 227 [1st Dept 2003]). With respect to the intent element, a rational jury could have found that defendant entered the CVS with the intent to commit a crime therein. Surveillance footage depicted defendant engaging in behavior outside and inside the store that a jury could have rationally viewed as furtive. In addition, the store manager testified that, when she told defendant to stop and give her the Red Bull, defendant became upset, \"slammed\" the items down, and left without protest. The jury also could have reasonably concluded that defendant's statements to the police during an interview, including that he \"f—d up,\" he \"did it,\" and \"all [he] took was a [R]ed [B]ull,\" constituted an admission of his intent to steal even if—as defendant contends—some of those statements could also be interpreted as referencing a separate incident. [FN1] Contrary to defendant's suggestion, the availability of innocent explanations for his conduct did not preclude the jury from rationally finding that the People proved the elements of burglary in the third degree beyond a reasonable doubt ( see People v Reed , 22 NY3d 530 , 535 [2014]; People v Grassi , 92 NY2d 695, 699 [1999]). At most, defendant identifies competing inferences to be drawn from the evidence, which a rational jury could have rejected ( see People v McDade , 14 NY3d 760 , 761 [2010]; People v Barnes , 50 NY2d 375, 381 [1980]). WILSON , Chief Judge (dissenting): Two cans of Red Bull cost about $6. Seven years of incarceration costs anywhere between $800,000 and $4 million, depending on the location within New York State [FN2] . For attempting to take two cans of Red Bull from a CVS, Raymond Williams was convicted of third-degree burglary, a felony, and sentenced to three and a half to seven years in prison. Mr. Williams was a perpetual petty shoplifter with substance abuse and mental health problems, so perhaps this result makes sense to someone. It does not to me. Mr. Williams's story is not uncommon. For much of his life, he has struggled with homelessness and drug addiction. Both factors disproportionately increase the risk of being caught up in the criminal justice system and sentenced to spend time in prison. Mr. Williams had previously been found guilty of many minor shoplifting offenses, including from other CVS stores. His problems were addressed by sentences of incarceration and probation, not treatment. Mr. Williams's prosecution occurred in 2017. His appeal comes to us 8 years later, and the People's brief in our Court explains that what happened to Mr. Williams back then is not what would happen now: \"For retail-theft cases where a defendant does not present a serious public safety risk, the Office now typically pursues multiple alternatives to incarceration. Defendants charged with a retail-theft felony are frequently diverted to the problem-solving courts under CPL Article 216 or similar provisions, where, in place of incarceration, they can receive programming to address underlying problems of substance abuse, mental health, and more. Defendants charged with a retail-theft misdemeanor are also routinely directed to an array of behavioral health court parts and programs, including the Midtown Community Justice Center, Manhattan Justice Opportunities, and others.\" Putting both psychiatric and fiscal wisdom aside, although it was within the discretion of prosecutors to charge Mr. Williams with felony burglary instead of, for example, petty larceny or trespass, the trial evidence was legally insufficient to convict him of burglary. No evidence in the case could have led a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal the two Red Bulls. I would therefore reverse his conviction. I. In reviewing the legal sufficiency of evidence supporting a conviction, we consider the evidence in the light most favorable to the People ( People v Acosta , 80 NY2d 665, 672 [1993]). The bulk of the evidence is the video captured on store cameras, which is unambiguous. On the morning of January 19, 2017, Raymond Williams entered the CVS store at 300 Park Avenue South in Manhattan. Several store cameras captured his movements and actions within the store. He can be seen walking past the store at first, then turning back and entering the store. He was carrying a bag. Once inside, Mr. Williams turned right and walked down the second aisle from the front of the store, glanced over his shoulder, then turned again and proceeded down the aisle with the beverage coolers. He opened one of the coolers, reached in, and removed two cans. Holding one can in each hand, he walked down the aisle toward the front of the store. He did not exit the store with them, but instead walked past the exit toward the self-checkout area. He never put, or attempted to put, the cans into his bag or pockets. A CVS employee recognized him as someone subject to a trespass notice (a document he signed several months earlier at a different CVS store, which barred him from entering any CVS stores because of prior thefts) and directed the head cashier to alert the store manager. The manager confronted Mr. Williams near the self-checkout and asked him to leave (\"She tells him stop. Give the items. You don't belong here\"). Mr. Williams handed over the cans and left. The manager returned the cans to the cooler. The CVS employee who recognized Mr. Williams testified that she recognized Mr. Williams as someone subject to a trespass notice, so she told the cashier to page for the store manager. The cashier paged over the loudspeaker (\"Security to the front, please\"). The employee testified that Mr. Williams \"got upset\" and \"slammed\" the Red Bulls down after the manager confronted him. The jury found Mr. Williams guilty of third-degree burglary, and the court sentenced him, as a second violent felony offender, to the maximum term of three-and-a-half to seven years. II. \"A person is guilty of burglary in the third degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein\" (Penal Law § 140.20). \"A person 'enters or remains unlawfully' in or upon premises when he [or she] is not licensed or privileged to do so\" (Penal Law § 140.00[5]). \"A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct\" (Penal Law § 15.05[1]). Viewed in the light most favorable to the People, the trial evidence was insufficient to allow a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal when he entered the CVS at 300 Park Avenue South. The People argue that the jury could have rationally inferred Mr. Williams' intent to steal two Red Bulls from three actions: First, he paused before entering the store, moved on, then entered a few seconds later; second, he looked over his shoulder at the end of an aisle; and third, after being told to leave, he \"slammed\" the Red Bulls down. None of those actions tends to show an intent to steal. The first two are everyday occurrences. Likely everyone reading this has bypassed a store and then turned around thinking the store might have something the person wants to buy. People walking into stores, particularly unfamiliar stores, look around all the time. Finally, slamming down the Red Bulls and leaving the store after being told \"Stop. Give the items. You don't belong here\" does not say anything about what he intended to do before being stopped. Mr. Williams's conduct cannot rationally be linked to guilt. A legal sufficiency analysis requires that we view the evidence \"in the light most favorable to the People.\" \"[S]urmise or conjecture\" cannot suffice ( see e.g. People v Castillo , 47 NY2d 270, 277 [1979] [\"(T)he foundation for the findings must be facts and inferences that are so reasonable that they cannot be confused with mere conjecture or suspicion\"]; People v. Scharf , 217 NY 204 [1916] [\"It is not enough to create a conjecture or suspicion, nor should the jury be permitted to guess at the truth . . . A mere surmise or conjecture does not raise a conflict of proof or a question of fact\"]). [FN3] The majority states that the surveillance footage depicted Mr. Williams \"engag[ed] in behavior outside and inside the store that a jury could have rationally viewed as furtive\" (majority op at 2). The majority does not specify what was conceivably \"furtive\" about Mr. Williams's behavior. The standard for legal sufficiency is whether an inference is rational and makes the relevant legal question at least a bit more likely than not. If the evidence showed that Mr. Williams, immediately before entering the CVS, hopped on one foot through a chalk hopscotch grid a child had drawn in front of the store, we would not conclude that was evidence of an intent to steal, any more than bypassing a store and turning back to enter it would (indeed, the first is more unusual than the second, but neither bears on intent to steal). One can argue anything, including (as the People did) that Mr. Williams's glancing over his shoulder or pausing before entering the store proved his guilt. But that conduct could not reasonably support a finding of guilt. The majority also implies, as the People did, that Mr. Williams's intent can be inferred from his inaction: Mr. Williams did not attempt to pay for the Red Bulls when confronted by the store manager. Again, Mr. Williams, who had previously signed a trespass notice saying that he could not enter any CVS, was instructed that he did not belong in the store and to give the drinks back. Nothing about that, taken in the light most favorable to the People, could lead a jury to find beyond a reasonable doubt that Mr. Williams intended to steal the Red Bulls. Finally, with nothing in Mr. Williams's conduct to support any inference of intent, the majority relies on statements he made to police, a month later, that he \"f—d up,\" he \"did it,\" and \"all [he] took was a [R]ed [B]ull.\" The detective's interrogation of Mr. Williams a month after the incident does not line up at all with the unambiguous video evidence or testimony of the store employees. The majority selectively excerpts those statements out of a portion of the interrogation during which Mr. Williams admits to drinking a Red Bull \" in the store .\" The full statement reads as follows: \"I f—d up you know what I'm saying? I did it. I did it. I'm not going to say I didn't do it—I did it. did it, it's bringing back memories. I was high running around crazy doing drugs and I was running, I was thirsty. I did have the Red Bull, the other Red Bull, I drunk it, I'm not going to lie. I had one Red Bull—I drank it in the store—then the lady told me put it back. I said hey—I told her I was thirsty and that's all I took out was a Red Bull, that's it. This is real different now. That's what going to hurt me.\" It is crystal clear from the surveillance video that Mr. Williams did not drink a Red Bull in the store, and the People do not claim that he did. His admission was also contradicted by the CVS employee's testimony that she took two unopened Red Bulls from him and returned them to inventory. No rational trier of fact could conclude that those statements related to the events at 300 Park Avenue South on January 19, for which he was tried. The absence of confession to the charged crime is entirely a consequence of the way the detective conducted the questioning and Mr. Williams's confused state. At the beginning of the interview, the detective explained to Mr. Williams that he was accused of two different trespassing violations at two different CVS stores in Manhattan on January 19th. She then gave Mr. Williams a description of his conduct that is contrary to the surveillance video, and never once asked a clear question about the charged event. Mr. Williams repeatedly expressed confusion about the time and location of the incidents they were discussing. When the detective showed him the trespass notice and asked if it had been given to him, Mr. Williams responded, \"That same day.\" The detective corrected him and stated he received the notice in September 2016. Williams then asked, \"This CVS? Which CVS is this? Is this the same CVS?\". The jury was only aware of a single incident, and was led to believe that the entire conversation between Mr. Williams and the detective involved a single incident at a single CVS store. It did not. Perhaps Mr. Williams was confessing to the commission of a different crime, in a different location, at a different time. But we do not allow a jury to impute intent to commit a crime from commission of other crimes. Even when read out of context, as the majority does, Mr. Williams's statements do not establish his intent to steal two Red Bulls when he entered the store, as required for burglary ( see People v Gaines 74 NY2d 358, 546 [1989] [\"(I)n order to be guilty of burglary for unlawful entry, a defendant must have had the intent to commit crime at time of entry\"]). The statements would at most support a conviction for petty larceny, which does not require that Mr. Williams had the intent to steal when he entered the store. Additionally, CPL 60.50 provides that \"A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed\" (CPL 60.50; see People v Lipsky , 57 NY2d 560, 571 [1982]; see also CPL 70.10[1] [\"evidence is not legally sufficient when corroboration required by law is absent\"]). Neither the store video nor the testimony constitutes any proof that the offense of third-degree burglary was committed, so his conviction for burglary should be reversed. III. Imprisoning someone for attempting to walk off with two cans of Red Bull—even a recidivist Red Bull shoplifter—for three and a half to seven years is very hard to justify to the public. Belatedly, one of the jurors in Mr. Williams case recognized that, and also explained that the jury convicted Mr. Williams based not on the evidence of his conduct that day, but on the trespass notice from a prior incident, thus underscoring the point that the evidence offered as proof of Mr. Williams's intent to steal was insufficient to persuade the jury. At trial, the court instructed the jury that the trespass notice could not be used to show that Mr. Williams intended to steal or had a propensity to steal, but could be used by the jury solely to establish that Mr. Williams's entry to the CVS was unlawful, which is a necessary element of burglary. One of the jurors wrote the following to the court after conviction but before sentencing: \"If you recall, you came and briefly spoke with the jury after the case—you said that Mr. Williams had something around 60-70 prior convictions, presumably as a means of reassuring us of our verdict. Unfortunately, this did not provide me any such solace. What I saw was a man with a history of poverty and drug use, characterized as a criminal. I believe that you decide your sentences based on fair justice and the well-being of the people of New York, but I must plead that you offer Mr. Williams your sympathy regarding his sentence. I know that he could be sentenced up to 7 years for the crime of burglary, especially given his criminal record, but this case was only a burglary in the very loosest interpretation of the law. 7 years for this crime, given the facts of the case, is a ridiculously harsh sentence. I ask that you consider Mr. Williams as a well intentioned man, who does not deserve to be imprisoned for this mistake. You said yourself that Mr. Williams's prior transgressions should not be counted against him, and I ask that you employ that same logic here. Please, Judge Fitzgerald, please choose a sentence for Mr. Williams that matches the severity of this crime. No one was hurt, the Red Bulls were put back on the shelves, and the defendant clearly lacked knowledge of his trespass order. I'm not sure what the minimum sentence is for this case, but I implore you to choose that minimum, or as close to it as you can. In the deliberation room, I argued adamantly for Mr. Williams's innocence. It seemed that despite having signed the trespass notice, Mr. Williams did not seem to have recollection of the trespass order, and thus could reasonably have been entering the CVS with the intention of purchasing Red Bull. Furthermore, his alleged confession included a statement that he drank a Red Bull \"in the store\" which did not seem to happen on the video, showing a lack of clarity regarding the events of the case. Ultimately, I was convinced by the other jurors that the trespass notice was damning evidence for conviction. Unfortunately, on further reflection, I now have tremendous doubt as to that decision. I could write great lengths on the facts of the case which explain my doubt, but I recognize that it's too late. I feel deep remorse, which is why I felt the need to write to you regarding the sentence.\" Although our caselaw is replete with decisions saying that we assume that juries follow the instructions of the court as to limitations on the way evidence can be used ( see e.g. People v Morris , 21 NY3d 588 , 598 [2013]), we are merely hopeful that the instructions are followed, not at all confident that they have been. Here, as the juror's note makes clear, it was not the video, not the testimony of the manager, and not Mr. Williams's statements on which the jury relied, but, instead, the trespass notice. Perhaps, as appellate judges, we have no choice but to assume the court's instructions are followed, but as I was once told, if you put a child in a room and say not to think about pink elephants, that's exactly what the child will think of. [FN4] A 2020 survey of more than 1000 Americans, conducted by the Associated Press-NORC Center for Public Affairs Research, showed that more than two-thirds of those surveyed believed the U.S. criminal justice system (including the police, prosecutors, defense counsel, courts and prisons) either needed reforms or a complete overhaul [FN5] . More than four times as many thought a complete overhaul was required than those who thought no changes were needed. Those findings are in line with many other studies conducted over the past decade [FN6] . A majority of Americans also support treating addiction as a health problem rather than a criminal problem, and support treatment over incarceration for people with drug addiction and mental illness. [FN7] Mr. Williams's case illustrates so many of the reasons for that lack of trust and confidence. Persistent recidivist shoplifting is a significant problem. It is constantly frustrating for shoppers, who have to wait to have displays unlocked, and for retailers, who lose countless items to theft. But charging the attempted theft of two Red Bulls as felony burglary reveals a different persistent problem: the prosecutorial overcharging of petty offenses [FN8] . As explained by the current Manhattan District Attorney's office in its brief in this appeal, treating petty offenders with mental health and/or substance abuse problems as dangerous criminals is unhelpful, is a huge waste of taxpayer dollars that could be better spent on addressing those problems instead of incarceration, and is not now the paradigm used by that office. Mr. Williams has struggled with substance abuse his entire life. He started abusing alcohol as a teenager, and since then, has spent most of his money toward feeding his drug and alcohol addiction. For at least ten years prior to the instant offense, he was homeless and living without food stamps. He also suffered from diabetes, which, combined with his homelessness and drug use, meant that he was often sick from low blood sugar levels. During that period, Mr. Williams developed a lengthy criminal history of non-violent misdemeanor petty larceny, including 29 theft convictions, \"all with similar facts\" to the instant offense. Some of those convictions led to stints in prison, which was the only aid he received for his problems. If nothing else, his shoplifting recidivism showed that the current system is broken—it offered him no mental health, substance abuse or supportive housing that might have put him on a different path. Instead, for moving two Red Bulls from the cooler to the checkout area, the court sentenced Mr. Williams to the maximum term allowable by law for third-degree felony burglary. In doing so, the sentencing court emphasized that the maximum term of three and a half to seven years was necessary \"to keep him away from other people's property for as long as reasonable\" and \"the only fair sentence for the community\". The community, though, paid more than a million dollars to incarcerate Mr. Williams. The severity of that sentence in relation to the offense also erodes public confidence in the criminal justice system, which is one of the reasons the Unified Court System, together with the Executive and Legislative branches, has been working to expand the availability of treatment courts and diversion programs. IV. Punishing Mr. Williams for offenses growing out of his addiction and poverty is neither necessary nor fair—not just unnecessary and unfair to Mr. Williams, but to the community at large. People living with mental illness or addiction in New York are much more likely to encounter the criminal justice system—even though community-based treatment is cheaper and more effective than services in prison [FN9] . Unhoused people are also much [*3] more likely—up to 11 times more likely—to be arrested than those who are housed. [FN10] But incarceration does nothing to address their health and housing needs. Misdemeanor convictions for offenses such as petty larceny reduce earning potential and deepen inequality [FN11] . The resources we use to incarcerate those populations could be better spent on housing, job training and educational support. \"Let's just be honest: there's nothing compassionate about letting people suffer without treatment on the streets.\" [FN12] Some of the problems of housing scarcity and inequality are external, but there are many things courts, and others within the criminal justice system, can do. Our courts can ensure that individuals are not convicted on artificially heightened charges and can sentence defendants to mental health services instead of prison. District attorneys can follow New York County's example by prioritizing treatment rather than prison for those charged with low-level offenses. Finally, as the New York City Bar has set forth in a recent report, the Legislature can narrow the actions that should be punished through the criminal system and take steps to decriminalize minor crimes, change sentencing structures and reduce sentences overall [FN13] . We can build a better system that focuses on treatment and rehabilitation, not reflexive incarceration, so people like Mr. Williams can receive the resources they need to have the chance to build productive lives in the community, rather than be excluded from it. Order affirmed, in a memorandum. Judges Rivera, Singas, Cannataro, Troutman and Genovesi concur. Chief Judge Wilson dissents in an opinion, in which Judge Halligan concurs. Judge Garcia took no part. Decided February 18, 2025 Footnotes Footnote 1: Insofar as defendant and the dissent assert that defendant's confession was not sufficiently corroborated ( see CPL 60.50) and therefore could not be used to establish defendant's guilt, defendant failed to preserve any such argument. In any event, the People introduced \"additional proof that the offense charged ha[d] been committed\" ( id. ). Footnote 2: Jullian Harris-Calvin et al., The Cost of Incarceration in New York State , Vera Institute of Justice (Oct. 2022); New York City Comptroller's Office Budget Bureau, NYC Department of Correction FYs 2011-21 Operating Expenditures, Jail Population, Cost Per Incarcerated Person, Staffing Ratios, Performance Measure Outcomes, and Overtime (Dec. 2021). Footnote 3: \"[E]vidence is relevant 'if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case' ( People v Cerda , 40 NY3d 369 , 376 [2023] [quoting People v Primo , 96 NY2d 351, 355 (2001)]). Evidence is something that makes a factual proposition more likely true than false, and information that does neither is not evidence. Put differently, a piece of evidence that does not make a material fact more likely to be true is not evidence at all ( cf. McCormick on Evidence § 185 [8th ed Jan. 2020 update] [\"(T)o think about whether an item of evidence has probative value . . . one can simply ask, 'Does learning of this evidence make it either more or less likely that the disputed fact is true?'\"]). Footnote 4: See generally Krulewitch v United States , 336 US 440 (1949) (Jackson, J. concurring) (\"The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction\"); Paul S. Milich, The Degrading Character Rule in American Criminal Trials , 47 Ga L Rev 775, 780 (2013) (\"Once the jury learns that the defendant has a criminal past, the odds of conviction skyrocket\"). Footnote 5: Associated Press-NORC Center for Public Affairs Research, June 2020 AP-NORC Center Poll , https://apnorc.org/projects/widespread-desire-for-policing-and-criminal-justice-reform/ [accessed Jan 23, 2025]. Footnote 6: See e.g. ACLU, Smart Justice Campaign Polling on Americans' Attitudes on Criminal Justice (Nov. 16, 2017) (Of the over 1,000 surveyed, \"91% say that the criminal justice has problems that need fixing\"), https://www.aclu.org/press-releases/91-percent-americans-support-criminal-justice-reform-aclu-polling-finds [accessed Jan 23, 2025]. Footnote 7: See id. (\"71 percent of Americans agree that incarceration is often counterproductive to public safety, since 'sending someone to prison for a long sentence increases the chances that he or she will commit another crime when they get out because prison doesn't do a good job of rehabilitating problems like drug addiction and mental illness'\"); see also Legal Action Center, Public Opinion Supports Bold Action to Reform Nation's Drug and Criminal Justice Policies (\"Most Americans (67%) believe we should treat addiction to opioids and other drugs more as a health problem rather than a criminal problem, including 78% of Democrats and 55% of Republicans\"), https://www.lac.org/assets/files/LAC-polling-sheet-combo-no-crops.pdf [accessed Jan 31, 2025]. Footnote 8: See generally Megan T. Stevenson & Sandra G. Mayson, The Scale of Misdemeanor Justice , 98 BU L Rev 731 (2018) (estimating that over 13 million misdemeanor cases are filed in the United States each year); Brennan Center, Hidden Toll: New York City's Misdemeanor System (finding that petit larceny and property-related charges increased in 2021 and 2022 after charges fell during the pandemic); People v Britt , 34 NY3d 607 , 630 (Wilson, J., dissenting) (citing scholarly literature in support of decriminalizing minor offenses and redirecting resources away from their prosecution). Footnote 9: Erica Bryant, The United States Criminalizes People Who Need Health Care and Housing , Vera Institute (Oct. 17, 2023) (\"New York City spends an appalling $556,539 annually to jail people in hellish conditions on Rikers Island. In contrast, it costs about $42,000 to house someone in a supportive housing program that provides individualized services for people with behavioral health needs that can lead to incarceration\"), https://www.vera.org/news/the-united-states-criminalizes-people-who-need-health-care-and-housing (citing New York City Comptroller's Office Budget Bureau, supra at note 1). Footnote 10: National Law Center on Homelessness and Poverty (NLCHP), Housing Not Handcuffs (Dec. 2019), 50. Footnote 11: Brennan Center, Poverty and Mass Incarceration in New York: An Agenda for Change (Feb. 23, 2021), https://www.brennancenter.org/our-work/policy-solutions/poverty-and-mass-incarceration-new-york-agenda-change. Footnote 12: Governor Kathy Hochul, 2025 State of the State Address, Jan. 14, 2025. Footnote 13: Report by the Mass Incarceration Task Force, Corrections and Community Reentry Committee, and Criminal Justice Operations Committee, A Pathway Out of Mass Incarceration and Towards a New Criminal Justice System: Recommendations for the New York State Legislature, Assn. of Bar of City of New York (May 2021), https://www.nycbar.org/wp-content/uploads/2023/05/2020883-APathwayOutOfMassIncarceration.pdf. "
},
{
"from": "gpt",
"value": "Court of\nAppeals affirmed burglary third conviction largely based on defendant\nviolating a trespass notice. As to proving an intent to steal (defendant was\nconfronted before leaving store), Court observed \"availability of innocent\nexplanations for his conduct did not preclude the jury from rationally\nfinding that the People proved the elements of burglary in the third degree\nbeyond a reasonable doubt\" (citations omitted)."
}
]
|
2025.00796 | [
{
"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 Correll 2025 NY Slip Op 00796 Decided on February 11, 2025 Appellate Division, First Department 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 and Entered: February 11, 2025 Before: Singh, J.P., González, Scarpulla, Rosado, O'Neill Levy, JJ. Ind. No. 821/08 Appeal No. 3652 Case No. 2012-02134 [*1] The People of the State of New York, Respondent, v Kyle Correll, Defendant-Appellant. Caprice R. Jenerson, Office of The Appellate Defender, New York (Rosemary Herbert of counsel), and Holwell Shuster & Goldberg LLP, New York (Adan Martinez of counsel), for appellant. for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent. Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered June 7, 2012, as amended June 19, 2013, convicting defendant, following a jury trial, of enterprise corruption, two counts of grand larceny in the fourth degree, and scheme to defraud in the first degree, and sentencing him to concurrent prison terms of 1 1/3 to 4 years on each count, unanimously modified, on the law, to the extent of vacating defendant's conviction under count 2 of the indictment as well as criminal acts 1 and 6 in the criminal acts alleged against defendant in the enterprise corruption count, and otherwise affirmed. This Court agrees with the parties that defendant's conviction under count 2 of the indictment charging grand larceny in the fourth degree, as well as criminal acts 1 and 6 alleged in count 1 of the indictment charging enterprise corruption, must be reversed because the trial evidence, which included evidence suggesting that defendant threatened physical damage to construction sites through vandalism, varied from the theory of the indictment ( see People v Grega , 72 NY2d 489, 496-498 [1988]). Each of defendant's remaining arguments allege insufficiency in some aspect of the proof. However, we find that the evidence was legally sufficient to satisfy the requirement that a defendant \"instill fear\" as required to prove grand larceny in the fourth degree by extortion ( People v Jennings , 140 AD3d 526 , 527 [1st Dept. 2016], lv denied 28 NY3d 931 [2016] ; see People v Forde , 153 AD2d 466,471-472 [1st Dept 1990] [emphasizing that threats do not need to be explicit]); sufficient for attempt to commit grand larceny in the fourth degree by extortion ( see People v Denson , 26 NY3d 179 , 189 [2015] ; Forde , 153 AD2d at 471-472); and sufficient to prove that defendant \"obtain[ed] property with a value in excess of one thousand dollars from one or more [victims]\" (Penal Law 190.65[1][b]), an element of scheme to defraud in the first degree ( see People v Taylor , 304 AD2d 434, 435 [1st Dept 2003], lv denied 100 NY2d 566 [2003]). We also reject defendant's argument that the scheme to defraud conviction was against the weight of the evidence ( see People v Danielson , 9 NY3d 342 -348-349 [2007]; see also People v Baque , __ NY3d __, 2024 NY Slip Op 05244 [2024]). Finally, because defendant has failed to show that he committed less than three of the criminal acts alleged in the indictment, his challenge to his enterprise corruption conviction also fails (Penal Law § 460.70[2]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: February 11, 2025"
},
{
"from": "gpt",
"value": "Judgment modified, with the People's agreement, by vacating Grand\nLarceny 4 conviction and criminal acts 1 alleged in Enterprise Corruption\ncount, because the trial evidence, which included evidence suggesting that\ndefendant threatened physical damage to construction sites through\nvandalism, varied from the theory of the indictment (see People v Grega,\n72 NY2d 489, 496-498 [1988])."
}
]
|
2025.50216 | [
{
"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\n[*1] People v Alny (Joe) 2025 NY Slip Op 50216(U) Decided on February 24, 2025 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 24, 2025 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Brigantti, J.P., James, Perez, JJ. 570153/22 The People of the State of New York, Respondent, against Joe Alny, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Jonathan Svetkey, J.), rendered March 11, 2022, convicting him, upon his plea of guilty, of disorderly conduct, and imposing sentence. Per Curiam. Judgment of conviction (Jonathan Svetkey, J.), rendered March 11, 2022, affirmed. Since defendant waived the right to be prosecuted by information, the accusatory instrument must be assessed under the reasonable cause standard applicable to a misdemeanor complaint ( see People v Dumay , 23 NY3d 518 , 524 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of the charged offense of stalking in the fourth degree ( see Penal Law § 120.45 [1]). The instrument recited that between October 1, 2021 and December 28, 2021, the victim \"received approximately eleven voicemails from the defendant on her work cell phone and over twenty emails from the defendant,\" including messages stating that defendant: \"tried many, many, many times based on my memories to call\"; that he was \"really disappointed why you don't visit me\"; and \"let's have sex.\" The instrument further stated that defendant \"received a letter from [the victim's] place of work instructing him that he no longer had permission to enter [the victim's] place of work [and] the defendant entered and was outside of her place of work multiple times after he was in receipt of this letter\"; and that defendant's conduct caused the victim to feel nervous, anxious and unsafe. These factual allegations and the reasonable inferences to be drawn from them were sufficient, for pleading purposes, to establish that defendant engaged in a course of conduct aimed at the victim that was likely to cause reasonable fear to her physical health and safety and was for no legitimate purpose ( see People v Stuart , 100 NY2d 412, 428 [2003]; People v Brandel , 30 Misc 3d 134 [A], 2011 NY Slip Op 50082[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011], lv [*2] denied 16 NY3d 828 [2011]). Penal Law § 120.45 \"properly reach[es] those delusional stalkers who believe either that their victims are in love with them or that they can win their victims' love by pursuing them\" ( People v Stuart , 100 NY2d at 427 [internal quotation marks and citation omitted]). Since the stalking charge was facially sufficient, the court had jurisdiction over defendant and was authorized to accept his plea to the uncharged lesser offense of disorderly conduct ( see People v Keizer , 100 NY2d 114, 117—118 [2003]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concurI concur Decision Date: February 24, 2025"
},
{
"from": "gpt",
"value": "Court found accusatory instrument was valid where it: (a)\ndetailed a 3-month period where defendant sent numerous voicemails (11)\nand emails (20); (b) stated defendant received a letter that defendant had\nno permission to enter the victim's work but both entered and was outside\nof their \"multiple times after he was in receipt of the letter\"; and (c)\nasserted defendant's conduct made the victim \"nervous, anxious and\nunsafe.\n\""
}
]
|
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