In People v. Smith, 1566/12, NYLJ 1202743491014, at *1 (App. Div., 1st, Decided November 24, 2015), the Appellate Division, First Department found that

The court failed to meet its core responsibilities under People v. O’Rama (78 NY2d 270, 277 [1991]) to provide defense counsel with “meaningful notice” of a jury note and to provide the jury with a “meaningful response.” The note requested “copies of all the telephone conversations recorded and copies of all the video recordings” and “a copy of the transcript of the court proceedings that we are allowed to see.”

Under O’Rama, the defendant and counsel must have the opportunity to examine a jury note and provide a meaningful response. The First Department held that “[a]lthough not all the O’Rama violations are mode of proceedings errors, here, where the exact wording of the juror note was never read in the presence of counsel so an objection could be made, preservation is not required” Id. at P. 2-3 (citing People v. Nealon, __ NY3d__, 2015 NY Slip Op 07781 [2015])). This case was reported by the New York Law Journal.

In an article released by the New York Law Journal, Andrew K. reported some of the Bronx District Attorney’s ideas at changing what most call a broken system:

Clark said in a statement she would create an internal task force trained in the jail’s procedures and station a prosecutor at the facility. She also said she would ask the Office of Court Administration to put a judge there to speed up arraignments and other proceedings.

Outgoing DA Robert Johnson has been faulted for declining to write up new felony arrest complaints against inmates. Instead, he was concentrating on reducing a backlog that Bronx DA public information director Terry Raskyn on Monday said has been eliminated.

Clark said the office needed to work together with city agencies and that she would request “adequate funding” from the City Council for Rikers cases.

She called for bail reform for low-level, nonviolent offenders as well as improved information sharing with the city’s other district attorneys.

Clark said she would “demand and expect that my office will be prepared to achieve real-time prosecution on every case possible, and I look forward to working with all the stakeholders to bring safety and the rule of law to Rikers Island.”

These reforms are long overdue as the story of Kalief Browder has proliferated throughout New York:



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Detectives were on patrol in an unmarked vehicle in Jamaica when they observed the Defendant and another man walking down the street. The detectives observed the defendant make “constant adjustments to his waistband” just before stopping him. Pp. 2. The police stopped, identified themselves and the defendant took off running. While fleeing, the defendant threw a gun onto the street. The Appellate Division  noted that the police articulation of what occurred did “not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight from the police.” Pp. 2 (citations omitted). The defendant was charged, indicted and later convicted of criminal possession of a weapon in the second and third degree. As is often the case, an omnibus motion was filed and the suppression of the firearm was denied by the Supreme Court.

Law: “In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed” (People v. Holmes, 81 NY2d 1056, 1058). Pp. 2 “Reasonable suspicion has been defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand.” Pp. 2 (citing People v. Martinez, 80 NY2d 444, 448 (internal quotation marks and brackets omitted)). “A suspect’s [f]light alone…even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” People v. Holmes, 81 NY2d at 1058 (citations omitted); see People v. Sierra, 83 NY2d 928, 929; People v. Carmichael, 92 AD3d 687, 688). However, flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit (People v. Holmes, 81 NY2d at 1058; see People v. Sierra, 83 NY2d at 929-930; see also People v. Martinez, 80 NY2d at 447).

Here, as stated above, there were not any specific circumstances indicative of criminal activity that would allow the police to pursue the defendant. New York follows the seminal case of DeBour which set out four specific levels of police inquiry. Here, “[a]t most, the police had only a common-law right to inquire under the second level of DeBour. The defendant had a right to refuse to respond to the police inquiry (see People v. Stevenson, 7 AD3d at 821), and his flight when the officers approached him did not, under the circumstances of this case, create a reasonable suspicion of criminal activity.(see People v. May, 81 NY2d 725, 728; cf. People v. Martinez, 80 NY2d at 448).” Pp. 3 (internal citations preserved).

In sum, the Appellate Division holds that, because the officers lacked reasonable suspicion to pursue the defendant, the chase was unlawful and the disposal was a product (fruit of the poisonous tree) of the illegality. The Appellate Division dismisses the indictment.

The case is People v. Clermont, available here (NY Law Journal)

The Defendant was charged with, inter alia, unauthorized use of a vehicle in the third degree. It is alleged that the Defendant went into someone else’s car and stole their wallet… The People do not give us much more information other than that. The issue here becomes whether the charging instrument was facially sufficient or, put another way, whether the charging instrument alleges facts of an evidentiary nature supporting or tending to support the charge and provides reasonable cause to believe the defendant committed the offense charged. See CPL 100.15(3) and CPL 100.40(4). The Court notes that there are no allegations that the defendant took any action or interfered with the victim’s possession or use of the car. The instrument charging the defendant did not allege or demonstrate that the defendant took any sort of control over the vehicle but merely entered the vehicle to obtain the victim’s wallet.

New York Criminal Defense Attorneys, it is important to note that an argument concerning an accusatory instrument’s facial sufficiency is jurisdictional and must be reviewed even if the defendant failed to raise it in the Criminal Court. Pp. 2 (citing People v. Alejandro, 70 NY2d 133 (1987)). Thus, defendant’s claim was not forfeited upon his plea of guilty. Id. (citing People v. Dreyden, 15 NY3d 100, 103 (2010); People v. Konieczny, 2 NY3d 569, 573 (2004). Here the allegations presented in the charging instrument did not allege anything in regards to the defendant taking control, driving, moving or interfering with the use of the  victim’s car in any matter. Although the allegations are of a nature that the defendant entered the car, the charging instrument did not provide reasonable cause to believe that the defendant had engaged in the unauthorized use of a vehicle in the third degree, to which he plead guilty. “[T]he judgment of conviction is reversed, defendant’s guilty plea is vacated, the count of the accusatory instrument charging defendant with unauthorized use of a vehicle in the third degree is dismissed, the remaining counts of the instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.” Pp. 4.

The case is The People v. Gavrilov, 2013-135 K CR, NYLJ 1202741921574, at 1 (App. Tm., 2nd, Decided October 21, 2015) accessible at httpwww.newyorklawjournal.comid=1202741921574The-People-v-Gavrilov-2013135-K-CR#ixzz3r5owGKud

The Supreme Court reverses the Maryland Court of Appeals finding that James Kulbicki did not have effective assistance of counsel. Amongst legal scholars, the Strickland Standard is well known. Indeed, the Supreme Court “held that this right requires effective counsel in both state and federal prosecutions, even if the defendant is unable to afford counsel.” Pp. 1 (citing Gideon v. Wainwright, 372 U. S. 335, 344 (1963)). “Counsel is unconstitutionally ineffective if his performance is both deficient, meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” Pp. 1 (quoting Strickland v. Washington, 466 U. S. 668, 687 (1984)). Some legal scholars have gone so far as to compare this standard to the foggy mirror test: hold a mirror underneath the criminal defense lawyer’s face to see if the mirror fogs – as long as it fogs, there is effective assistance of counsel.

The Supreme Court said that the Maryland Court of Appeals applied this standard “in name only” (pp. 1), finding an expert report favorable to the defendant unlikely to be found at the time and/or impact the finding of guilty. Here the expert testimony elicited at trial compared the lead in the bullet within the victim’s skull and the lead of the remaining bullets the defendant possessed and found it likely to be the same lead. It was Comparative Bullet Lead Analysis (“CBLA”) which, although accepted at the time, was contradicted by an report existing at the time written by Agent Peele. Like any good science, Comparative Bullet Lead Analysis has been criticized and fallen out of favor by current scientific standards: Remember, the expert at Kulbicki’s trial indicated that it was likely that the very same lead found in the victim’s brain that was also found in a box of bullets that Kulbicki purchased. Noting the errors in this science, “[o]ne of the many findings of the report was that the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box.” Pp. 2. The Maryland Court of Appeals, indicating that the testimony is at significant odds with what is taken as knowledge today, looked at this faulty assumption as a good reason to overturn this conviction.

The Supreme Court reverses, finding that “The Court of Appeals offered no support for its conclusion that Kulbicki’s defense attorneys were constitutionally required to predict the demise of CBLA.” “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Pp. 3. The Supreme Court critiques the Maryland Court of Appeals for second-guessing the trial strategy in light of what was a well-accepted science in the 1990s but not, as the Supreme Court indicated, an accepted science in 2003. “Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis.” Pp. 4. “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial, the effect of the judgment below is to demand that lawyers go ‘looking for a needle in a haystack,’ even when they have ‘reason to doubt there is any needle there.’” Pp. 4 (quoting Rompilla v. Beard, 545 U. S. 374, 389 (2005)).

The Supreme Court again asserts that the ineffective assistance of counsel standard is not perfect advocacy but reasonable competence. “Kulbicki’s trial counsel did not provide deficient performance when they failed to uncover the 1991 report and to use the report’s so-called methodological flaw against Peele on cross-examination.” Pp. 5. Reversed.

The case is Maryland v. James Kulbicki, 577 U.S. ___ (Oct. 5, 2015).

Long Island Town and Village Code: Have you ever been charged with violating the “code”? Has code enforcement tried to enter your home? You can and should refuse entry without a warrant. Throughout Long Island, code enforcement by incorporated villages and towns often result in (some very valid) criminal charges for violating the “code.” This can be anything from converting a garage to living space or not mowing the lawn. Here, the defendant was accused an convicted of “violating section 275-5 of the Code of the Town of Southold, in that he had constructed “stairs within 100′ of the bluff line without a permit from the Board of Trustees.”

The case is The People v. Martino, 2013-2134 S CR, NYLJ 1202741291489, at *1 (App. Tm., 2nd, Decided September 18, 2015) and Section 275-5 (A) of the Code of the Town of Southold provides that “[n]otwithstanding any prior course of conduct or permission granted, no person shall conduct operations on any area within Trustee jurisdiction (§275-3C) [sic] without first obtaining a written permit therefor issued by the Trustees as hereinafter provided and only while such permit remains in effect.”

In specifying the provisions which the Defendant here supposedly violated, Section 275-3 (C) of the Code of the Town of Southold provides that “Land within 100 feet of the [bluff]” is protected under Section 275-5(A). The Town of Southhold brought these charges yet never determined whether the stairs that Martino erected were actually within 100 feet of a bluff. Defendant went to trial where a judge sat in judgment of the law and the facts. After being convicted, the defendant put several arguments forward on appeal. The Appellate Court, however, evaluated the evidence poised against Martino and determined that it was not legally insufficient:

The testimony of a bay constable was aided by the admission into evidence of three photographs of the stairs in question. However, the bay constable never testified where the bluff line was on the photographs. He never testified that the stairs were on land within 100 feet of a bluff. The bay constable merely “guess[ed]” that the stairs were within the jurisdiction of the Board of Trustees. The Chairman of the Town of Southold Board of Trustees, who was a witness for the prosecution, never testified that the incline arising from the beach on defendant’s property on which the stairs were located was steep enough to constitute a bluff. His testimony as to where the bluff line was on defendant’s property was based on an approximation. While he testified that “[w]etland jurisdiction is one hundred feet of vegetation wetland and fresh water wetland is also one hundred [feet] from the wetlands,” he never specifically testified that the stairs were within 100 feet of a bluff. The photographs merely show stairs going from the rear of a property to the beach and the sound. They do not contain any measurements. Thus, defendant’s conviction of violating Section 275-5 of the Code of the Town of Southhold was based on legally insufficient evidence.

Conviction overturned: the appeal was successful. This is an important reversal because of the number of these criminal charges brought which are sometimes without merit and the result if challenged. If the Defendant had merely plead guilt, it is likely the Defendant would have to remove these stairs and paid a hefty fee and/or fine in doing so. By hiring an attorney and fighting the charges, Martino keeps the stairs and does not have to pay the $4,000 fine….

The Defendant here was charged with murder in the second degree. After he came upon a man hitting his brother in the head with a hammer, he stabbed what became the victim. The Defendant testified that he was in his own home when his ex-wife told him that someone was beating his brother up with a hammer down the block. Defendant testified that he ran onto the victim’s porch, tried to break up the fight, and, in the scurry, stabbed the victim in the chest with a knife.

Procedural History: “The jury acquitted defendant of second degree murder, but found him guilty of manslaughter in the first degree. Supreme Court subsequently sentenced defendant to 25 years in prison, to be followed by five years of postrelease supervision. The Appellate Division unanimously affirmed the judgment of conviction (114 AD3d 1134 [4th Dept 2014]), and a Judge of this Court granted leave to appeal (23 NY3d 1044 [2014]).” Pp. 6.

At issue here was the jury instruction of Justification and whether the initial aggressor exception to the justification defense misstates the applicable law where defendant intervened in an already existing fight. Indeed:

At the charge conference, Supreme Court indicated that it would, at defendant’s request, give a charge on the justification defense. Defendant then specifically requested that the court read the standard criminal jury instruction on justification, but exclude the portion that addressed the initial aggressor rule, because defendant did not “stand in the shoes of anybody initially involved in the fight.” Alternatively, defendant argued that, if an initial aggressor charge “were to be used at all[, it] should indicate the first person to use deadly force, not offensive force.” In contrast, the People asserted that there was “a fair view of the evidence to show that…defendant [was] acting in concert with” his brother and girlfriend, which “makes him accountable as an initial aggressor.”

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