The appeal here comes from a conviction, after a jury trial, of predatory sexual assault against a child and course of sexual conduct against a child in the first degree. The defendant here was infected with a certain sexually transmitted disease (STD) that was proved at trial albeit without testimony. The issue becomes whether there is a confrontation clause issue.
Recently, the Supreme Court held that no Confrontation Clause violation occurred when the statements of a three year old child, who did not testify, were admitted into evidence against a defendant. The Court held that these statements by a child to a teacher were made to address an ongoing emergency: child abuse. Since Crawford v. Washington, Courts have struggled with what is barred by the Sixth Amendment’s Confrontation Clause. Criminal defense attorneys know that the issue is daunting and the Crawford decision has led to much confusion.
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Like any good rule, however, there are exceptions. In Ohio v. Clark, 135 S.CT. ___ (June 18, 2015), the Supreme Court of the United States reversed: holding that the introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother’s boyfriend as the source of his injuries did not violate the Confrontation Clause, when the child did not testify at trial, because the statements were not made with the primary purpose of creating evidence for prosecution.
Later decisions would clarify what was and what was not testimonial. The Supreme Court made clear that “if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” In Bullcoming, a Driving While Intoxicated (“DWI”) prosecution, the Court evaluated whether a blood analysis was testimonial even though it was made in the regular course of DWI prosecutions. Although this occurs quite regularly in criminal trials, the Supreme Court held that “[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because— having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” 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.
Defendants often complain that they have to keep coming back to Court and the prosecution is never ready for trial. Witnesses, evidence and sometimes the theory of the case disappears and, over time, criminal defendants answer ready for trial over and over yet no trial ever occurs. “At issue on this appeal is whether the People’s repeated declarations of unreadiness in court rendered their prior off-calendar statements of readiness illusory.” Pp. 2. New York Speedy Trial rights attach to a criminal defendant facing a crime or violation charge. While there are exceptions, a violation of New York Speedy Trial rights may entitled a defendant to move for a dismissal on these grounds alone.
A statement of readiness certifies that the People are ready to proceed to trial and, thus, tolls the “speedy trial clock” from running. People v. Stirrup, 91 NY2d 434, 440 (1998). Such a statement, while presumptively truthful and accurate, “entails more than a mere empty assertion of readiness.” Stirrup, 91 NY2d at 440. It must be a good faith, affirmative representation on the record of present and actual readiness. See People v. Kendzia, 64 NY2d 331, 337 (1985); People v. Robinson, 171 AD2d 475, 477 (1991)). While a post-readiness declaration by the People that they are not ready does not necessarily render the prior statement of readiness illusory. People v. Brown, 126 AD3d 516, 517-518 (1st Dep’t. 2015), leave granted. The Court here found that an issue remains as to what makes a prior off-calendar statement of readiness illusory. Reviewing what happened, the Court finds that:
Defendant appealed from a conviction of criminal possession of a weapon in the second degree, criminal possession of marijuana in the third degree, aggravated unlicensed operation of a motor vehicle in the second degree, and speeding. The New York Law Journal reported that “While speaking to Campbell, Emil Garcia, a Westchester County police officer, smelled marijuana. According to court papers, Campbell told Garcia that he had smoked marijuana and that there was marijuana inside the car.” Just another case where the defendant, instead of speaking to the police, should have exercised (you have to tell the police this) his right to remain silent and demand to speak to an attorney: do not hesitate to call the Law Offices of Cory H. Morris if you are stopped by the police, anytime..
Here, Defendant alleges that the statements between him and a co-defendant were improperly admitted into evidence above his objection. The statements were the conversation that the defendant had in the back seat of the police car, all recorded by the police camera(s). The Defendant challenged the statements (also introduced against the co-defendant). 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 . 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 .
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 , 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.
The Defendant here is charged with Criminal Trespass in the Second Degree (PL §140.15), Criminal Trespass in the Third Degree (PL §140.10[a]), and Trespass (PL §140.05). Defendant moved pursuant to CPL §§ 170.30(1)(e) and 30.30 to dismiss the accusatory instrument on speedy trial grounds.
The case delineates the procedural history very carefully:
The Court, somehow unaware of the speedy trial motion to dismiss, dismissed the misdemeanor informations on the basis of facial insufficiency. The People refiled the charges and the defendant moves to dismiss, again, on speedy trial grounds. The People contest the instant motion on the grounds that no time has run against the People because the People filed new charges. more