This case comes by way of an appeal. The Defendant was convicted of assault in the third degree and criminal mischief in the fourth degree, upon a jury verdict. A New York Criminal Defendant has the right to be tried by a fair and impartial jury. Prospective jurors must be able to fairly look at the evidence and not incorporate their own personal biases in rendering a verdict. A criminal defendant ought to hire a good criminal defense attorney to flush out such biases which may not be so apparent:

CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence (see People v Johnson, 94 NY2d 600, 614; People v Goodwin, 64 AD3d 790, 791). A prospective juror’s responses, construed as a whole, must demonstrate an absolute belief that his or her prior opinion will not influence his or her verdict (see People v Culhane, 33 NY2d 90, 107; People v Goodwin, 64 AD3d at 792).

“Here, during voir dire, one prospective juror indicated that because her aunt had been the victim of a violent sexual assault, it would ‘be a little bit hard’ for her to keep an open mind when listening to the facts of this case.” Wait a second – this is something that needed to be flushed out through questioning and paying careful attention to the juror behavior. The Court when onto describe that “[w]hen [the prospective juror was] asked whether she could ‘give the defendant in this case a fair trial,’ she responded, ‘I can manage. Yes.’ When asked if it was possible that her judgment in this case might be affected by her aunt’s case, she responded, ‘Might.'” You can imagine that if you were the defendant in this case, you “might” not want this juror rendering a decision impacting your future:

The prospective juror confirmed that she would refrain from blaming the defendant for what happened to her aunt or favoring the prosecution for successfully prosecuting her aunt’s assailant, but when asked again by defense counsel whether her aunt’s experience “might affect [her] ability to judge this case,” the juror paused and finally said, “I don’t know.” The court denied the defendant’s challenge for cause to this prospective juror. The defense then exercised a peremptory challenge to remove her and exhausted all of its peremptory challenges prior to the end of jury selection.

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It sounds like a bad joke: A cop rolls up to a citizen and says “what’s up, guys.” The citizen does not respond. He puts his head down and starts walking faster. The reason for the stop? He was staring.  The New York Law Journal reported that “[a]n appeals court set aside a man’s conviction for weapons possession after concluding that his arrest was premised on nothing more than the defendant looking in the direction of police as he walked in a ‘higher-crime’ area of Buffalo.” Was this a friendly greeting or a police inquiry?

The Court finds that the police’s action required a reason. More than simply a police officer engaging with a citizen, the officer engaged in a level of intrusion as discussed by De Bour and its progeny. Indeed, [the officers engaged in a level one approach and request for information when they concluded the traffic stop after observing defendant and the other men walking down the sidewalk, crossed the street in their marked patrol vehicle in order to drive alongside the men, and asked them the basic, nonthreatening question, “what’s up, guys?” (see People v. Howard, 129 AD3d 1654, 1654; People v. Johnston, 103 AD3d 1202, 1203, lv denied 21 NY3d 912; People v. Carr, 103 AD3d 1194, 1194). Contrary to the People’s contention, it cannot be said, under such circumstances, that the officers’ approach and inquiry was merely a “friendly greeting” that did not constitute a request for information (cf. People v. Thornton, 238 AD2d 33, 35)] Pp. 2 (internal citations preserved). more

Spread the word: Phone calls made in jails and prisons are often subject to recording. Here, the (New York) department of corrections recorded the defendant’s phone calls to the complainant which, inter alia, could very well served as the proof of yet another criminal charge. The original set of domestic violence charges stems from the defendant assaulting the complainant and her son. In one instance of assault, an off-duty police officer (as well as the defendant) were shot. New York domestic violence cases are difficult to prosecute because the failure of the complaining witness to comply with court orders and follow through with pursuing criminal charges against the perpetrator of domestic violence. As is the case here, sometimes the perpetrator of domestic violence takes an active role in preventing the witness (complainant) from coming forward. The issue becomes whether statements of the complaining witness can be utilized against the defendant when the defendant prevents the complainant from testifying against him.

In the instant matter, “[t]he People have moved to admit into evidence at trial out-of-court statements made by the complainant at or around the time of the commission of the crime, both on audiotape to an Assistant District Attorney, and before the Grand Jury, claiming that the complainant is unavailable to testify at trial due to misconduct by the defendant. The defendant opposes the motion and a hearing was held on July 20, 2015, and continued on September 11, 2015, September 25, 2015, and concluded on October 30, 2015.” The pertinent law is as follows:

A defendant in a criminal case enjoys the right to confront the witnesses against him at trial pursuant to the Sixth Amendment of the United States Constitution. This right can be voluntarily waived by a defendant; it can also be forfeited if his own misconduct renders a witness unavailable to testify at trial. United States v. Mastrangelo, 693 F 2d 269 (1982), cert denied 456 U.S. 973 [1982]; Snyder v. Mass, 291 U.S. 97 (1934). If a witnesses’ unavailability is procured by the defendant through chicanery (United States v. Mayes, 512 F 2d 687 [6th Cir, 1975], cert den 422 U.S. 1008 [1975]); by threats (United States v. Balano, 618 F 2d 624 [10th Cir, 1979], cert den 449 U.S. 840 [1980]); or by actual violence or murder (United States v. Thevis 665 F 2d 616 [5th Cir, 1982], cert den 456 U.S. 1008 [1982]), the defendant cannot assert his Confrontation Clause rights or the rules against hearsay to prevent out-of-court statements from being admitted against him. Any other result would mock the very system of justice the Confrontation Clause was designed to protect. United States v. Mastrangelo, supra, at 273. Included in witness intimidation is the use of a relationship in which a defendant has a “controlling” or “coercive” effect on the witness. People v. Byrd, 51 A.D.3d 267(1st Dept. 2008); see also People v. Johnson, 93 NY 2d 254 (1999). This is especially true in domestic violence cases. See People v. Santiago 2003 NY Misc Lexis 829 (NY Co. Sup Ct 2003, Atlas, J.)

New York State has adopted this rule based on the sound public policy of protecting the integrity of the adversarial process by deterring litigants from tampering with witnesses who may testify adversely to them. People v. Geraci, 85 NY 2d 359 (1995). At a hearing to determine whether such misconduct occurred, causing a witness to become unavailable to the People, the prosecutor’s burden is to show, by clear and convincing evidence, that the witness’ unavailability was procured by the defendant’s misconduct. Geraci, supra, at 366; People v. Cotto, 92 NY 2d 68 (1998); Holtzman v. Hellenbrand, 92 AD 2d 405 (2nd Dept. 1983) If the People meet that burden, the defendant is precluded from asserting either the constitutional right of confrontation, or the evidentiary rules against the admission of hearsay, to prevent the admission of the witness’ out-of-court declarations. Geraci, at 366; Cotto, at 76. These statements are not limited to Grand Jury testimony but can include other out-of-court statements. Cotto at 77.

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A New Trial is Ordered for a Nassau County Criminal Defendant removed from his trial without warning. This case hails out of Long Island, New York. Practicing as a criminal defense attorney out of Suffolk County, New York, I sometimes hear fellow attorneys and friends discuss criminal cases where someone got “off” on a technicality. When I hear that, I usually think constitution: The criminal defendant asserted his rights under the constitution – the violation of a criminal defendant’s constitutional rights resulted in a new trial or a dismissal. Here, another nuanced constitutional right, the Defendant had the right to be present at all material stages of the his trial. The Appellate Division, Second Department describes that right as fundamental:

A defendant has a “fundamental constitutional right to be present at all material stages of a trial,” including “the court’s charge, admonishments and instructions to the jury” (People v Rivera, 23 NY3d 827, 831; see People v Harris, 76 NY2d 810, 812; People v Mehmedi, 69 NY2d 759, 760). However, “[a] defendant’s right to be present during trial is not absolute,” and “[t]he defendant may be removed from the courtroom if, after being warned by the trial court, the disruptive conduct continues” (People v Joyner, 303 AD2d 421, 421; see Illinois v Allen, 397 US 337, 343; People v Rivas, 306 AD2d 10, 11; People v Connor, 137 AD2d 546, 549). CPL 260.20 provides, in relevant part, “that a defendant who conducts himself in so disorderly and disruptive a manner that his trial cannot be carried on with him in the courtroom may be removed from the courtroom if, after he has been warned by the court that he will be removed if he continues such conduct, he continues to engage in such conduct.”

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Defendant was charged with four counts of assault in the second degree, two counts of criminal possession of a weapon in the fourth degree, and one count of endangering the welfare of a child. A recording was made by the father of the child, “which was played to the jury at defendant’s trial, defendant told the five-year-old boy that he was going to hit him 14 times for lying and that this would hurt more than a previous beating.” The defendant contested to the use of the recording and that ” the recording amounted to eavesdropping in violation of Penal Law § 250.05, because no party to the conversation consented to the recording, so that the evidence was inadmissible under CPLR 4506…”

The trial court allowed the recording to be admitted into evidence, with respect to the endangering the welfare of a child count, holding that the father’s action was not eavesdropping, and that, even if it were, it was justifiable on the basis of the “duty of the father to take some action once he heard [defendant’s] conduct.” The court relied on People v Clark (19 Misc 3d 6 (App Term, 2d Dept, 2d & 11th Jud Dists 2008), lv denied 10 NY3d 861 [2008]), in which the Appellate Term permitted the admission of a recording based on a theory of vicarious consent.The Appellate Division affirmed the trial court’s judgment (124 AD3d 672 (2d Dept 2015))… [adopting] the vicarious consent doctrine, as recognized with respect to the federal wiretap statute by the Sixth Circuit in Pollock v Pollock (154 F3d 601 [6th Cir 1998]), and in New York by the Appellate Term in People v Clark.

In New York, “[t]he contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury” (CPLR 4506 [1]). The Court finds that father’s actions on his cellphone did not constitute “wiretapping” because, with respect to the telephonic communication he recorded, he was “a sender or receiver thereof.” Penal Law § 250.00 (1). “Defendant argues, however, that the father’s actions amounted to the crime of “‘ mechanical overhearing of a conversation’ ” (Penal Law §§ 250.05, 250.00 [2]), and that the recording was consequently inadmissible. The New York Court of Appeals holds that “the definition of consent, in the context of “mechanical overhearing of a conversation” pursuant to Penal Law § 250.00 (2), includes vicarious consent, on behalf of a minor child.”: more

The crux of many complaints, it took over a year and a half for the Bronx Criminal Court to dismiss the charges against a criminal defendant on speedy trial grounds. Often confusing to both practitioners and clients, the New York speedy trial rule is codified in the Criminal Procedure Law (CPL). New York Criminal Defendants have both a constitutional right to a speedy trial as well as a statutory right to speedy trial.  Generally speaking, the issue of whether the People (New York District Attorneys) have satisfied their obligation, statutorily, under CPL §30.30 is determined by (1) “computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness”; (2) “subtracting any periods of delay that are excludable under the terms of the statute”; and then (3) “adding to the result any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.” People v. Cortes, 80 NY2d 201, 208 (1992).

After the people announce ready, the defendant generally has the burden of showing that adjournments should be charged to the People. See People v. Anderson, 66 NY2d 529, 541 (1985); People v. Daniels, 217 AD2d 448, 452 (1st Dep’t. 1995), Iv dismissed, 88 NY2d 917 (1996). This is often where the waters get murky and people get confused. more

Police are allowed to interact with citizens from on day to day encounters. Whether buying a cup of coffee or saying hello, police officers have that latitude to speak to people during their tour of duty. The question becomes when does the interaction from the police become one where the approach and, (what likely follows), the subsequent seizure and/or search becomes illegal.

The testimony at the suppression hearing established that at approximately 6:30 p.m. on January 18, 2013, a Buffalo police officer and his partner were conducting a traffic stop in the parking lot of a gas station when they observed defendant and two other men walking down the sidewalk on the other side of the street in a “higher crime area.” According to the officer, defendant was “staring” at him and his partner or at their marked patrol vehicle. Upon concluding the traffic stop, the officers crossed the street in their vehicle in order to drive alongside the men, the officer asked, “what’s up, guys?” from the rolled-down passenger window, and defendant then put his head down and started walking away at a faster pace. The officer thereafter observed defendant drop a gun holster to the ground and, after exiting the vehicle and picking up the holster, the officer saw defendant discard a handgun into nearby bushes. The officer’s partner positioned the patrol vehicle to cut off defendant’s path of travel, and defendant was eventually apprehended.

Pp. 1-2 (external quotation marks omitted). Here, the Defendant pled guilty to criminal possession of a weapon in the second degree. The appeal comes by way of the Defendant’s contention that the Supreme Court was wrong in refusing to suppress physical evidence, namely the handgun. The issue here is the police approach as described above.

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In New York, you can be charged with a crime for some rather innocuous behavior, including rioting. Hire a good criminal defense attorney – that is no April Fools Joke. The Defendant here was accused of just that, rioting, “being involved in a fight where he and at least four other individuals struck each other with closed fists.” The Court’s job here was to evaluate the criminal charges to see if they were legally sufficient.

The charges filed indicate that there was a fight, a brawl… Perhaps even, a riot. In this “melee” a chair was thrown and people were thrown all about. As a result, the Defendant is charged with Riot in the Second Degree (PL §240.05) and Disorderly Conduct (PL §240.20[5]).

Penal Law §240.05 provides that “[a] person is guilty of riot in the second degree when, simultaneously with four or more other person, he engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of public alarm.” “The phrase ‘tumultuous and violent conduct’…means much more than mere loud noise or ordinary disturbance. ‘It is designed to connote frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts.'” People v. Morales, 158 Misc.2d 443 (Crim Ct, NY County 1993), quoting Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law §240.05, at 210.

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