The case highlights the importance of a New York Criminal Defense Attorney preserving the record and properly exercising juror challenges because, as was the case here, even a seemingly innocuous statement and position by the New York Assistant District Attorney trying the case can result in a reversal. The situation is such that the Criminal Defendant and two other individuals go to a strip club where the Criminal Defendant drinks and pays for a lap dance. Evidently upset at the quality of the dance, a scuffle ensues. The accusation is that the Defendant assaulted another resulting in serious bodily injury.

Here, the record reflects that the People sought to exercise peremptory challenges to exclude four of the five nonwhite individuals comprising the second panel of prospective trial jurors. Indeed, as defense counsel noted, “The only [nonwhite juror] who was not excluded [from this panel] was the daughter-in-law of the former Chief of Police of the Albany Police Department.” In response to defense counsel’s Batson challenge, County Court asked the People — “based upon the peremptory challenges” asserted — to “give a race-neutral reason…for th[o]se selections,” thereby implicitly finding that defendant had made a prima facie showing of discrimination. The People provided such an explanation as to prospective juror Nos. 4, 6 and 17 but refused to offer a race-neutral explanation as to prospective juror No. 2, noting that this juror was the first nonwhite juror that they had sought to exclude by use of a peremptory challenge. As the prosecuting attorney succinctly put it, “I shouldn’t be made to give a reason for the first one.” Defense counsel took issue with the People’s lack of a raceneutral explanation for the exclusion of this juror, noting that “the fact that [prospective juror No. 2] was the first person of color [to be] excluded [was]…merely fortuitous.” County Court rejected defendant’s argument on this point and allowed the People to exercise a peremptory challenge to exclude prospective juror No. 2, as well as prospective juror Nos. 4 and 6.

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The Defendant was charged with, among other things, Driving While Intoxicated (VTL 1192). Defendant challenges the stop and subsequent arrest. Defendant further claims that the results of his blood alcohol test should be suppressed because his right to counsel was violated. The officer, a veteran in driving while intoxicated detection, pulled over the defendant inquired as to whether the defendant had anything to drink. At first, the defendant denied drinking anything. Sobriety tests were performed and a portable breath test came up with results of .07 and .08. The police officer asked the defendant again if he had anything to drink to which the defendant responded that he drank a sip of wine. The defendant was taken into custody and asked to speak to an attorney.

“A defendant has a qualified, not an absolute, right to counsel when deciding whether to submit to a breath test to determine blood alcohol content (see People v. Smith, 18 NY3d 544, 549 [2012]; People v. Gursey, 22 NY2d 224, 227 [1968]). However, once afforded, if that qualified right is to have any meaning, the communication between the defendant and his or her attorney must be private. Because the police prevented that privacy here, the court suppresses the results of the breath test, all statements defendant made while on the phone with his attorney, and that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 1. more

The Prosecution failed to present legally sufficient evidence at trial – the trial involving sexual assault against a child. The Defendant here was a Rabbi and the child was one who was confused during testimony. The Court makes it decision not based upon the credibility of the witnesses but upon the prosecution’s failures. At the close of the case, the defense, as often happens, moved for a dismissal. Indeed,

At the conclusion of the people’s case or at the conclusion of all the evidence, the court may…issue a trial order of dismissal, dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense…. CPL §290.10(1)(a).

CPL §290.10 applies to jury and nonjury trials, alike, and permits a trial order of dismissal only when the evidence presented at trial is insufficient as a matter of law. See People v. Sabella, 35 NY2d 158 [1974]. Legally sufficient evidence means “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commissions thereof….” CPL §70.10(1); emphasis added. If the prosecutor has established a prima facie case, the evidence is deemed legally sufficient, Sabella, at 167, and the case proceeds to deliberation by the finder of fact.

Here, “the People failed, as a matter of law, to present a prima facie case in that they were unable to present legally sufficient evidence to establish the date on which the alleged offense occurred. Predatory Sexual Assault Against A Child and Sexual Abuse in the First Degree require that the prosecutor prove among other elements the date and the place of the alleged incident.” Pp. 3.  more

This appeal comes from the Nassau County Traffic and Parking Violations Agency (“TPVA”). The Defendant was charged with using a mobile telephone while operating a motor vehicle (VTL Section 1225-c(2)(a)). A non jury trial was held at the Nassau County TPVA and the police officer testified that the defendant was holding her cellular phone in her hand, next to her face, and driving the car. At this point, it is incumbent upon the Defendant to contest these assertions by the police officer. The Court here notes that the defendant “had exculpatory evidence to present” but the Court did not allow her to present her case. A verdict was rendered and the defendant, who appeared to be confused, continued to protest that she had exculpatory evidence, evidence that tends to prove her innocence, that she wanted to present to the Court. The defendant was convicted. This appeal follows as the defendant contests that she was deprived of her fundamental constitutional right to a fair trial – again, this is due to a VTL violation:

Vehicle and Traffic Law §1225-c (2) (a) provides that “no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion….” For purposes of the statute, “using” a mobile telephone means holding a mobile telephone to, or in the immediate proximity of, the user’s ear (Vehicle and Traffic Law §1225-c [1] [c] [i]), and “engage in a call” means “talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone” (Vehicle and Traffic Law §1225-c [1] [f]). Moreover, “[a]n operator of any motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section…. [and] [t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call” (Vehicle and Traffic Law §1225-c [2] [b]).

Pp. 2-3 (external quotation marks omitted and internal citations preserved). The Appellate Term states that the People have the burden of establishing the Defendant utilized the cellular phone while driving. Once the people’s burden is met, here the officer testifying as to the cellular phone use while the vehicle was in motion, the defendant should have had the opportunity to rebut the presumption made by the people. more