Category: Due Process

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New York Criminal Defense Attorneys know that the criminal justice system is coercive, often resulting in people who are afraid of the consequences or stuck in jail to plead guilty to things that may not have actually occurred. Plea bargains must be entered into voluntarily. A plea cannot be coerced from a defendant by improper means, whether physically coerced or coerced by the threat of punishment for taking the case to trial and obtaining a guilty verdict on a lesser charge. Not a television drama, criminal defense attorneys advise their clients of their options, weighing the evidence and the people’s ability to prove their case beyond a reasonable doubt. While being found guilty of a lesser included charge may result in jail time (or an alternative sentence), a judge cannot comment that the defendant will have a certain fixed sentence after jury trial as opposed to a range of sentence for a crime of which he or she has not been convicted.

While we do not know the facts and circumstances of this case, the Fourth Department allowed a defendant to withdraw his guilty plea:

During discussions over the plea offer, the court addressed the possibility of a jury convicting defendant of the lesser included offense of manslaughter in the first degree by stating: “[Y]ou wouldn’t get any better than 25 [years] if you get a manslaughter. That’s a big ‘if.'”…”[T]he court’s statements do not amount to a description of the range of potential sentences but, rather, they constitute impermissible coercion, rendering the plea involuntary and requiring its vacatur” (People v. Kelley, 114 AD3d 1229, 1230 [internal quotation marks omitted]; see People v. Boyde, 122 AD3d 1302, 1302-1303).

Do not be forced to enter a guilty plea. Contact a criminal defense attorney and evaluate your options. Call the Law Offices of Cory H. Morris: 631-450-2515.

People v. Williams, KA 14-00717, NYLJ 1202772393196, at *1 (App. Div., 4th, Decided November 10, 2016)

Traffic Infractions and Vehicle and Traffic Law Violations bear serious consequences in New York State. This case comes by way of “[a]ppeal from eight judgments of the City Court of Rye, Westchester County…The judgments convicted defendant, after a nonjury trial, of three charges of failing to obey a traffic control device, three charges of failing to signal before turning, operating an unregistered motor vehicle, and failing to wear a seatbelt while operating a motor vehicle, respectively.” The defendant contends that the “City Court failed to provide findings of fact to support its decision as required by CPLR 4213 (b) or, in the alternative, remit the matter for a new trial.” The Court disagrees but reviews the evidence based on its discretion and the interests of justice.

So what happened here: a New York State motorist was pulled over and received eight (8) eight simplified traffic informations charging the motorist with failing to obey a traffic control device (Vehicle and Traffic Law §1110 [a]) by traveling in excess of the posted speed limit (three charges), failing to signal before turning (Vehicle and Traffic Law §1163 [d]) (three charges), operating an unregistered motor vehicle (Vehicle and Traffic Law §401 [1]), and failing to wear a seatbelt while operating a motor vehicle (Vehicle and Traffic Law §1229-c [3]). He goes to trial and the judge convicts the motorist of all of the above mentioned charges. Not a unique situation.

What is unique is the Court reviewing the case and finding that evidence was legally insufficient to establish the motorists’ guilt of all of these violations: more

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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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

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

The issue before the Court is whether a joint trial should proceed (judicial economy) or where the trial should be severed (because of prejudice to one or more of the Defendants). In making its decision, the Court heavily relies upon the Sixth Amendment Confrontation Clause, through Crawford and its progeny, and the Defendants’ Due Process Rights to a Fair Trial. In so doing, the Court notes that

Severance may be granted for cases in which multiple defendants have antagonistic defenses. People v. Mahboubian, 74 NY2d 174 [1989]. Even if the charges against multiple defendants are properly joined in a single indictment, a trial court may grant severance “for good cause shown,” from which a court finds that a “defendant will be unduly prejudiced by a joint trial.” CPL §200.40(1). “Where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant severance.'” People v. Mahboubian, 74 NY2d 174, 183, citing, People v. Bornholdt, 33 NY2d 75, 87 [1973].

Severance is not required, even in those cases in which there is hostility between or amongst the parties, different trial strategies, or inconsistencies in each defense. People v. Cruz, 66 NY2d 61 [1985], rev’d on other grounds and remanded, 481 US 61. “It must appear that a joint trial necessarily will, or did, result in unfair prejudice to the moving party and substantially impair his defense.” Id., at 73, 74. In determining whether defenses are sufficiently antagonistic, therefore requiring severance, a court looks to two tests. In the first, a court must determine whether the defenses are logically inconsistent — whether the core of each defense is rationally irreconcilable with the other. See United States v. Romanello, 726 F2d 173 [5th Cir. 1984]. In the second test, a court must consider whether there is a danger that a jury will unjustifiably infer a defendant’s guilt because of the conflicting and irreconcilable defenses. See Rhone v. United States, 365 F2d 980 [DC Cir. 1966]. In New York, more specifically, “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.” Mahboubian, 74 NY2d 174, 184.

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Although the victim did not die immediately, the injuries caused by the defendant here, eventually, resulted in the death of the victim. The victim here was elderly, almost one-hundred years old, – “[t]he conviction arises from a home invasion burglary during which the 96-year-old victim sustained, among other injuries, a subdural hematoma and so many broken facial bones that his skull remained distorted when he died approximately five months later.” Pp. 1.

The Court repeats the longstanding rule in New York:

” [i]f a person inflicts a wound . . . in such manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Indeed, it may be said that neglect of the wound or its unskillful and improper treatment, which were of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible’ ” (People v Kane, 213 NY 260, 274). Thus, “[f]or criminal liability to attach, a defendant’s actions must have been an actual contributory cause of death, in the sense that they forged a link in the chain of causes which actually brought about the death’ ” (Matter of Anthony M., 63 NY2d 270, 280). Additionally, the “defendant’s acts need not be the sole cause of death; where the necessary causative link is established, other causes, such as a victim’s preexisting condition, will not relieve the defendant of responsibility for homicide . . . By the same token, death need not follow on the heels of injury” (id. at 280).

What is interesting about this case is that the victim did not die immediately. Indeed, the court repeats over and over again that the victim was 96 years old – well past any of my relatives…

Here, the evidence established that defendant repeatedly struck the 96-year-old victim in the face and head, thereby fracturing the victim’s orbit, sinuses, and jaw in numerous places and causing a subdural hematoma, and that many of those injuries had not healed at the time of his death approximately five months later. Thus, we conclude that “the ultimate harm, i.e., death, was a reasonably foreseeable result of [that] conduct’ ” (People v Cox, 21 AD3d 1361, 1362-1363, lv denied 6 NY3d 753). Although defendant’s expert testified that the victim died of his advancing Alzheimer’s-type dementia, the Medical Examiner testified that the injuries that the [*2]victim sustained in this attack were the cause of his death. Thus, the court “was presented with conflicting expert testimony regarding the cause of death, and the record supports its decision to credit the People’s expert testimony” (People v Fields, 16 AD3d 142, 142, lv denied 4 NY3d 886; see generally People v Miller, 91 NY2d 372, 380). Consequently, we conclude that, although other possible causes of the victim’s death were not eliminated, the medical evidence, viewed in the light most favorable to the prosecution, is legally sufficient to establish that defendant’s acts “were at least a contributing cause of” the victim’s death (Anthony M., 63 NY2d at 281).

Albeit nearing one-hundred years old, the victim’s death was attributable to the Defendant and therefore the Defendant’s conviction was upheld. The case is People v. Pratcher, 2015 NY Slip Op 09730 (Dec. 31, 2015).

The First Department reviewed a conviction and did not find harmless error to uphold the conviction. Here, the “Defendant’s right of confrontation was violated by testimonial hearsay evidence that went beyond the permissible scope of explanatory background material….Defendant was further deprived of his right to a fair trial by other portions of the prosecutor’s summation…The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial…[therefore,] [t[he totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict.”  People v DeJesus, 2015 NY Slip Op 08959 (1st Dep’t. Dec. 8, 2015). What happened here?

Among the problems stated by the First Department in reaching their decision, I focus on one in particular:

During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days (see People v Aponte, 2 NY3d 304, 308-309 [2004] [trial court improperly stated, among other things, that it was “nowhere near” the point when it would find a hung jury, where deliberation had lasted two days]). The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system (see People v Huarotte, 134 AD2d 166, 170-171 [1st Dept 1987]; see also Aponte, 2 NY3d at 308 [finding reversible error where, among other things,Allen charge “suggested that the jurors were failing in their duty”]). Pp. 1-2 (external quotation marks omitted and internal citations and quotations preserved).

In light of other criminal cases coming out of the Bronx (e.g. Kalief Browder), it is important to emphasize the neutral role the judge is to play while making sure the rights of the defendant are not violated by the prosecutor. In this case, the First Department concluded that “there is a significant probability that defendant would have been acquitted if not for the violation of his right of confrontation, the prosecutor’s improper statements in summation, and the court’s improper statements during deliberation.” Pp. 2 (citing People v Crimmins, 36 NY2d 230, 242 (1975)). The case is People v DeJesus, 2015 NY Slip Op 08959, (1st Dep’t. Dec. 8, 2015). A new trial was ordered. The case is People v DeJesus, 2015 NY Slip Op 08959.