Tag: New Trial


After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree. A new trial is ordered because of the prosecutor’s statements regarding DNA evidence. The weight of the evidence was against the defendant. A gun was found and the defendant confessed. It is important to note, irrespective of the reasons for why it was done, that the prosecutor’s statements are what gives rise to a new trial.

The facts are as follows

On the evening of September 13, 2012, two officers of the Buffalo Police Department were patrolling a high crime area on the east side of the city when they saw a vehicle stop abruptly outside of a house. Defendant exited the vehicle, looked several times at the officers’ patrol car, and walked quickly towards the back of the house. The officers suspected defendant of trespassing and quietly followed him, approaching the house from different directions. They lost sight of defendant for approximately 15 to 30 seconds. Defendant suddenly emerged from behind the house, and one officer began questioning him about his behavior. The other officer reported that he had seen defendant “standing next to” a blue City of Buffalo garbage tote located nearby. When one officer lifted the lid of the garbage tote, defendant dropped his head and said, “oh man.” A loaded gun was inside. Defendant was arrested and confessed to having possessed the gun.

Although the ” Defendant moved to suppress the gun and his statements to the police, arguing that he abandoned the gun in response to unlawful police pursuit and that he was arrested without probable cause,” (id. at p.2), the Court only suppressed the statements, finding that the Police were engaged in observation and not pursuit. While the Court finds that the evidence here is sufficient to support the conviction, the Court finds that the statements made by the prosecutor should result in a new trial. more


The People of the State of New York failed to demonstrate that the defendant understood the Miranda warnings and his statement, therefore, such statements should have been suppressed. Here, the “defendant was charged, inter alia, with robbery in the second degree and criminal possession of stolen property in the fifth degree based on allegations that he personally, or acting in concert with others, committed robberies in two stores in Brooklyn.” He was convicted of robbery in the second degree (three counts) and criminal possession of stolen property in the fifth degree. The Court “Ordered that the judgment is reversed, on the law, the defendant’s motion to suppress his statements to law enforcement officials is granted, and a new trial is ordered.”

Once the right to counsel is invoked, a New York Defendant has the indelible right to counsel. Police cannot question a New York Defendant once that Defendant demands an attorney. This case is a hallmark example of how Miranda rights can be skirted and, sometimes, disregarded when a Defendant is not of sound capacity, mind or understanding as to his constitutional rights, his Miranda rights, and how to exercise those rights. Involuntarily given statements are inadmissible. The court sets out the hallmark factors of admissibility of a Defendant’s statement:

“[F]or a statement to be admissible, the People must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination” (People v Aveni, 100 AD3d 228, 236 [2012] [citation omitted]; see People v Rodney, 85 NY2d 289, 292 [1995]; People v Williams, 62 NY2d 285, 288 [1984]). “Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation” (People v Santos, 112 AD3d 757, 758 [2013] [internal quotation marks omitted]; see People v Williams, 62 NY2d at 288), including the defendant’s “age, experience, education, background, and intelligence, and . . . whether he [or she] has the capacity to understand the warnings given him [or her], the nature of his [or her] Fifth Amendment rights, and the consequences of waiving those rights” (Fare v Michael C., 442 US 707, 725 [1979]). Where a “person of subnormal intelligence” is involved, “close scrutiny must be made of the circumstances of the asserted waiver” (People v Williams, 62 NY2d at 289).

“A defendant’s mental deficiency weighs against the admissibility of an elicited confession, so that any such confession must be measured by the degree of the defendant’s awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them” (People v Dunn, 195 AD2d 240, 242 [1994], affd 85 NY2d 956 [1995]). A suspect of “subnormal intelligence” may effectively waive his or her Miranda rights “so long as it is established that he or she understood the immediate meaning of the warnings” (People v Williams, 62 NY2d at 287), that is, “how the Miranda rights affected the custodial interrogation” (id. at 289). Therefore, it must be shown that the suspect “grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject’s disadvantage; and that an attorney’s assistance would be provided upon request, at any time, and before questioning is continued. What will suffice to meet this burden will vary from one case to the next” (id.).


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.”



Scott Lewis appeals from a murder conviction, alleging constitutional violations in the form of Brady v. Maryland violations. This conviction from 1990 relied almost entirely on the testimony of Ovil Ruiz, a man who repeatedly denied having any knowledge  of the murder that led to this conviction and only testified that he did “after a police detective promised to let Ruiz go if he gave a statement in which he admitted to being the getaway driver and incriminated Lewis and another individual, Stefon Morant.” Pp. 2. The United States District Court for the District of Connecticut granted Lewis’s habeas petition on the grounds of a Brady violation. The Second Circuit affirms.

Both Scott Lewis and Stefon Morant were tried for murdering Ricardo Turner and Lamonth Fields. Both were found guilty. At trial, there was no eyewitness testimony or forensic evidence, merely the testimony of Ovil Ruiz. Ruiz made up a story. May 10, 1995, a jury convicted Lewis on two counts of murder and two counts of felony murder, one count as to each victim. He was sentenced (T1) to 120 years imprisonment. On direct appeal, the Supreme Court of Connecticut affirmed Lewis’s convictions (T2) but vacated the his felony murder convictions on double jeopardy grounds.

Had it not been for Morant’s motion for a new trial, the following information would have never been divulged: The two police detectives who questioned Ruiz on the night he implicated Lewis provided the circumstances of which Ruiz inculpated Lewis at the Police station back in 1991: After saying he knew nothing of the two murders, detective Raucci begin telling Ruiz the facts of the murder, where they occurred, the scenario in which the murderers escaped with the guns in a gym bag at which point he was interrupted by detective Sweeny. Detective Sweeny told Raucci that his interrogation approach was inappropriate at which point the two detectives returned to the interrogation room where Ruiz said he wanted to inculpate Morant and Lewis. Detective Sweeny intervened again but was “pulled away on another matter…” Pp. 8. When Sweeny returned, he was concerned about the significant change in testimony but nonetheless, the statement was made and Ruiz was the catalyst to place these two men in jail. Sweeny subsequently retired and took a position volunteering in the United Nations, Bosnia.

The detective, Raucci was later found to be linked with New Haven drug trade, he resigned from the police department because of misconduct, was later arrested for domestic-violence, charged with larceny and ultimately arrested by the FBI after a four-hour stand-off in New Mexico. Sweeny came forward to disclose what happened.

January 9, 2001 Lewis files a pro se habeas petition raising new evidence regarding Ruiz’s perjury, Brady violations and newly discovered alibi evidence. The petition was denied (T3) by the Connecticut superior court. The Connecticut court found that such information should have been discovered, inter alia, by the due diligence of defense counsel. Lewis appealed (T4) to the Connecticut Supreme Court for certification to an appellate court. He filed an uncertified appeal and provided the Appellate Court with, amongst other things, transcripts from the criminal trial, probably cause hearing and detective Sweeny’s testimony at the Morant new trial hearing. His appeal was denied on the grounds that “he failed to include the transcript from his state habeas trial before Judge Zoarski and thus failed to provide an adequate record for review.” Pp. 12 (citing Lewis v. Comm’r of Corr., 73 Conn. App. 597, 599 (2002)). Lewis than sought review (T5) from the Connecticut Supreme Court through a petition for certification which was denied without discussion…

Over a decade later, Lewis filed a petition for habeas relief in the District of Connecticut arguing that the State denied his right to a fair trial and violated due process when it withheld Brady material during his trial. On December 16, 2013, over twenty years later, the petition was granted and the Court concluded that Lewis was entitled to federal habeas relief. After the order of release, the state timely appealed (T6).

The Second Circuit reviewed the state’s arguments – that (1) Lewis procedurally defaulted on his Brady claim at the state level and (2) that he did the state “did not contravene clearly established federal law and was not based on an unreasonable factual determination.” Pp. 15. Rejecting both of the state’s arguments, the Second Circuit focused on the second argument made by the state and then reviewed the Pro Se applications by Lewis.

Rule: “A federal court may only grant a petitioner relief with respect to any claim that was adjudicated on the merits in State court proceedings if the State adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)‐(2).”

Pp. 15, n. 5.

Specifically, the Second Circuit find that the State Court’s decision requiring the defendant to exercise due diligence to obtain exculpatory evidence is wrong and the state habeas decision based its decision on “unreasonable findings of fact when it ignored key aspects of the record.” Pp. 16. The court found no independent state grounds of which the decision should not be reviewed and the alleged incomplete record was containing a transcript which the Second Circuit found not to be vital pursuant to that Connecticut rule.

Throwing another monkey wrench in the mix, Connecticut faults Lewis with not following the certification requirement – that being certifying that his appeal was not frivolous. The Second Circuit rejects this argument, holding that “the State does not identify any Connecticut authority for a certification-briefing requirement…Connecticut courts do not regularly enforce this procedure.” Pp. 22 (citing Hankerson v. Comm. of Corr., 150 Conn. App. 362, 368 (2014)). Examining the standards set forth by the Lozada case, the Second Circuit found that Lewis complied with all the requirements of Connecticut law to bring his appeal and “[a]t the very least…demonstrated that his case presented issues that were debatable amongst jurists of reason.” Pp. 23.

Reviewing the petition to the Federal District Court itself, the court finds no clear error in the habeas corpus petition. The state court (because the appellate court summarily rejected it) provided the only review on the merits – in reviewing the above rule (28 U.S.C. § 2254), the Court finds that the state decision contravened clearly established law and was based on an unreasonable determination of the facts. The Second Circuit observes, clearly in contravention to Federal law, that the State Court imposed a duty on Lewis to find out exculpatory information, Brady material. Further, the Second Circuit states that the Respondents’ brief “distorts the state habeas court’s decision” (Pp. 29) in claiming that Lewis did not exercise due diligence in finding Brady material.

“The State’s failure to disclose exculpatory evidence, including impeachment evidence, in its possession constitutes a Brady violation, irrespective of the good faith or bad faith of the prosecution, Brady, 373 U.S. at 87, and regardless of whether the information is known only by the police and not the prosecutor.” Pp. 31 (citing Kyles v. Whitley, 514 U.S. 419, 437‐38 (1995); see also United States v. Triumph Capital Grp., Inc., 544 F.3d 149, 161 (2d Cir. 2008)).

Brady: [There are three components of a Brady violation: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Boyette, 246 F.3d at 89 (quoting Strickler v. Greene, 527 U.S. 263, 281‐82 (1999)).]

If the defense counsel had this information, there would have been meaningful cross-examination of Ruiz, the state’s failure to disclose it, obviously, hindered the defense from learning of it and the evidence was material. Being a probable different result, the Court finds that this pressuring of a witness very well resulted in Lewis’s finding of guilt. Information about the sole witness to a murder without any other corroborating evidence would very likely result in a different outcome. The Second Circuit notes that detective “Sweeny provided credible evidence that Ruiz simply parroted information supplied by an unscrupulous police officer.” Pp. 36.

Conclusion: The state’s failure to disclose this information prejudiced Lewis and the United States District Court is upheld.