Court of Appeals

ourt of Appeals C

November 2019 through February 2020 Pertinent Criminal-Related Decisions

By Timothy P. Murphy, Esq.

Timothy P. Murphy, Esq. is an

Assistant Federal Defender, WDNY, formerly chief appellate attorney for the Legal Aid Society of Buffalo, and a Vice-President of NYSACDL.

November 21, 2019 People ex rel. Prieston v. Nassau Co. Sheriff’s Dept. 34 NY3d 177

At issue is CPL 520.30(1), which governs the conducting of a bail sufficiency hearing regarding the use of collateral pledged on an insurance company bond in support of bail. Here, Supreme Court was correct in the first instance and the AD erred in granting the petitioner / respondent’s state habeas corpus petition pursuant to CPLR article 70. The petition is dismissed. In setting bail, courts must consider the kind and degree of control or restriction that is necessary to secure the defendant’s court attendance. CPL 510.30. Under CPL 520.30(1), the court is permitted to conduct an inquiry, including six enumerated factors, regarding the value and sufficiency of any security offered. The AD erred in its total deference to the insurance company’s business judgment, which may not be consistent with the state’s concern for having the defendant return to court. Supreme Court did not abuse its discretion in finding that the unspecified value of automobiles pledged by the defendant were insufficient to ensure defendant’s return to court.

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November 25, 2019

People v. Rouse

34 NY3d 269

Consistent with People v. Smith, 27 NY3d 652, 659 (2016) (addressing the cross-examination of a police officer regarding claims of a false arrest in a previous federal law suit), law enforcement may be cross-examined regarding acts of dishonesty just as other prosecution witnesses are. Defendant was convicted of attempted murder. The weapon was not tested for DNA or fingerprints. While admissibility is ultimately within the trial court’s discretion, a trial attorney acting in good faith may cross-examine a witness regarding specific allegations of wrongdoing relevant to credibility. The Court rejected a seven-part test from the Second Circuit for determining the scope of cross-examination regarding a prior incident. See, United States v. Cedeno, 633 F3d 79, 82-83 (2d Cir. 2011). Instead, a three-part test is followed, consistent with Smith, 27 NY3d at 662 (requiring that there be a good faith basis for the inquiry, the content be relevant to credibility and that the examination not confuse, mislead the jury or prejudice the opposing party). Identification was the pertinent issue at trial. The trial court abused its discretion as a matter of law in precluding defense counsel’s attempt to inquire regarding one of the officers misleading a federal prosecutor as to his involvement in a ticket-fixing scheme, while preparing to testify in a federal proceeding. Defense counsel also pointed to two federal court (SDNY) suppression determinations wherein the officer provided unreliable testimony. A new trial was ordered.

November 26, 2019

People v. Li

34 NY3d 357

Defendant was a doctor from Queens who provided his addicted patients prescription pills at will. His manslaughter conviction was based on legally sufficient evidence, despite the lack of direct evidence between the two individuals who overdosed and defendant’s conduct. Patients at bar were not required to

Judge Wilson argues persuasively for the decriminalization of low level crimes in neighborhoods having significant amounts of indigent and minority residents. The dissent addresses the defendant’s personal background here, thus humanizing him.

make appointments and were required to pay in cash. Physical exams were rare. Over 21,000 prescriptions were written in a three-year period. Seconddegree manslaughter requires here that the People must establish the requisite recklessness mens rea and that the defendant engaged in conduct through the sale of dangerous drugs that directly causes the death of another. Recklessness means that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk of such nature and degree that it constituted a gross deviation from the standard of a reasonable person under the circumstances. Causation was the prime issue here. A defendant’s conduct must set in motion events which ultimately result in the victim’s death. The defendant’s actions need not be the sole cause of the death, nor does the defendant’s conduct need to be the final, fatal act. But the conduct must be an actual contributory cause. The fatal result must be reasonably foreseeable. The evidence was sufficient here even though it was sketchy whether defendant actually provided the drugs that the victims ingested which led to their deaths. Judge Wilson wrote an insightful dissent. Unlike tort liability, a generally foreseeable risk and an action that ignites a chain of causation is not enough.

People v. Thomas People v. Green People v. Lang 34 NY3d 1019

The court here wrestles over what constitutes a knowing, intelligent and voluntary appeal waiver under circumstances where a written waiver form containing false information is used. The Chief wrote for the majority, which covered three combined separate cases wherein defendants pleaded guilty after waiving their right to appeal orally and in writing, and then perfected their appeals. Two of the three appeal waivers considered were found to be invalid, as those two oral allocutions failed to cure the errors contained in the written waiver forms. The appeal waivers for Green and Lang, both out of Genesee County in WNY, were invalidated. The Thomas waiver, from Bronx County in NYC, was approved. The written waivers at bar mischaracterized the scope of

the defendants’ appellate rights being waived, specifically regarding whether defendants could file a notice of appeal and secure assigned counsel on appeal. False info in this regard could easily deter defendants from exercising their fundamental and constitutional rights to direct appellate review of their criminal judgments of conviction. See, CPL 450.10; N.Y. Const., art. VI, § 4(k). At the very least, the validity of an appellate waiver must be reviewed. In Green and Lang, which utilized identical waivers, the written forms falsely indicated that the defendants could not file an appeal, nor have assigned appellate counsel. The oral allocutions did not cure the situation. In Thomas, though the written form erroneously indicated that defendant could (and was) waiving the right to file a notice of appeal, the court found other language in the form to be “clarifying” and the oral allocution to be sufficient. In his Lang / Green dissent, Judge Garcia indicates that prosecutors may be less willing to strike deals with defendants now. In his Thomas dissent, Judge Wilson boldly argued for the abolition of all appeal waivers and the overruling of People v. Seaberg, 74 NY2d 1, 7-8 (1989). Appeal waivers have become “purely ritualistic.” They have proven to be unworkable and are rarely knowing, intelligent and voluntary.

December 17, 2019

People v. Patterson

34 NY3d 1112

This is a 4 to 3 memorandum, affirming the AD. The trial court did not abuse its discretion in denying defendant’s challenge for cause under CPL 270.20(1)(b). The prospective juror did not demonstrate preexisting opinions that might indicate bias. Because of this, an unequivocal assurance that she could be fair and impartial was unnecessary. Judge Fahey disagrees in dissent, opining that the trial court had an obligation to “inquire further” to obtain unequivocal assurances that the prospective juror could be impartial.

People v. McCullum 34 NY3d 1022

Not too much to be see here. This is a unanimous memorandum, affirming the AD. The “standing” issue for challenging the search of defendant’s apartment was not preserved. See, C.P.L. 470.05(2).

People v. Mairena People v. Altamirano 2019 NY Slip Op 08978

Two cases were combined in this decision, which affirmed the appellate courts. The issue in both cases was whether the defendant was deprived of a fair trial where counsel depended on particular jury instructions confirmed by the trial court, presented summations and then had the instructions subsequently changed when they were given to the jury. Under the circumstances, the defendants believed that they were deprived of the right to an effective summation. The errors regarding both defendants were harmless; the evidence of guilt in both cases was overwhelming. People v. Crimmins, 36 NY2d 230, 237, 241-242 (1975). The prejudice component of this analysis is whether a summation is materially affected by knowledge of the charge submitted. Neither case passed this inquiry. Though agreeing with the result, Judge Fahey in concurrence argues that the constitutional harmless error standard should have been applied by the majority. In dissent, Judge Rivera also trumpets the unique importance of a defendant’s summation in our adversarial system. The dissent believed that new trials should have been ordered.

December 19, 2019

People v. Ellis

34 NY3d 1092

This is a 6 to 1 memorandum, affirming the AD. Judge Rivera dissented for reasons stated in the dissenting opinion in People v. Ellis, 166 AD3d 993, 997-1006 (2d Dep’t 2018). Defendant’s argument that it was error for him to be in prison garb during several days of jury selection is unpreserved. See, CPL 470.05(2). The trial court also did not err in denying defendant’s challenge for-cause regarding the issue of implicit bias. There was no indication that the prospective juror had a professional or personal relationship with the People’s witnesses or counsel. CPL 270.20(1)(c); People v. Branch, 46 NY2d 645, 651 (1979); People v. Colon, 71 NY2d 410, 418 (1988).

People v. Cook

2019 NY Slip Op 09059

The lower court did not abuse its discretion in granting the People’s request to reopen a suppression hearing after the People rested (but prior to the court making a suppression decision). The defendant was charged with robbing a cab driver at knife point in the Bronx. Money was demanded, the driver was cut, the vehicle crashed and the perpetrator fled. The police found defendant on a subway platform two blocks from the car accident, about four to five minutes after the police responded to the scene. Defendant matched the description provided by the victim. Defendant argued that the police did not have reasonable suspicion to execute a level-three intru-

sion under De Bour. After resting their case, the People requested permission to reopen the hearing in order to call one of the officers who first spotted the defendant on the subway platform. Of the five people on the platform, the defendant was the only one matching the victim’s description. The hearing was ultimately reopened. The hearing court at bar had not yet issued a suppression decision. The DA is entitled to “one full opportunity” to present their evidence. In general, the prosecution should not be afforded a second opportunity to succeed once they have failed. The People should also not gain the windfall of impermissibly tailored testimony on a remand. Absent a showing that the People were deprived of a full and fair opportunity to be heard, they are precluded from reopening a suppression hearing to shore up their evidentiary or legal position. Otherwise, defendants’ success at suppression hearings would be meaningless. The court here did not abuse its discretion in granting the DA’s request to reopen the hearing. The majority notes that concerns about finality and the risk of tailored testimony must be balanced against the strong public policy in holding “culpable individuals responsible and protecting legitimate police conduct.” Moreover, there is less required formality in a suppression hearing (CPL 710.60[4]) than in a trial (CPL 260.30). The dissent argues that the suppression court indeed tipped its hand here and the People followed its lead.

People v. Udeke

2019 NY Slip Op 09057

This is a 5 to 2 memorandum, affirming the Appellate Term. The accusatory instrument charging second-degree criminal contempt, an “A” misdemeanor, was facially sufficient, as the allegations and reasonable inferences drawn therefrom provided reasonable cause that defendant intended to violate the “stay way” provision of the order of protection in question. He did this by being physically present in the close confines of a subway turnstile with his wife, the protected person in the order. Based on the record as a whole, defendant’s “B” misdemeanor plea was voluntary as well. The dissent argues that the non-citizen defendant’s Sixth Amendment right to a jury trial was violated pursuant to People v. Suazo, 32 NY3d 491, 494 (2018), as the lower court effectively communicated that defendant was giving up the right to a jury by pleading guilty to a “B” misdemeanor.

People v. Britt

2019 NY Slip Op 09060

This is a 5 to 2 decision. The First Department is affirmed. It was 11:15 pm in Times Square. Defendant was seen drinking out of a paper bag, apparently consuming alcohol in public in violation of a NYC ordinance. The police saw the defendant and followed him into a haunted house attraction. Defendant was handcuffed and searched incident to arrest. He was ultimately found in possession of crack cocaine and 17 counterfeit bills (totaling $300), which were separated from his genuine money and wrapped in a rubber band. Defendant possessed an amount the majority described as a “large sum.” It was not inadvertent. He made incriminating statements regarding the counterfeit currency. The People’s expert from the Secret Service testified that individuals who pass counterfeit bills often separate them from their genuine currency. There was legally sufficient evidence to support defendant’s conviction for 1 st degree criminal possession of a forged instrument (“CPFI”) under PL § 170.30, which requires proving a complex mens rea mandating that the defendant knows that the instrument is forged and that he or she intends to defraud using the instrument. Just knowing that you possess a forged instrument is insufficient. There was also record support for the suppression court’s determination that law enforcement had reasonable suspicion and therefore properly conducted a third-level De Bour intrusion. This being a mixed question of law and fact, no further review was authorized. Judge Wilson writes for the dissent. There was no evidence that defendant attempted to use, was using, or had plans to use the counterfeit money. Further, the police only had reasonable suspicion, if they had even that, for defendant committing a violation, not a crime. See, People v. Moore, 6 NY3d 496, 498-499 (2006). The facts here only justified a level-two intrusion. Judge Wilson further argues persuasively for the decriminalization of low level crimes in neighborhoods having significant amounts of indigent and minority residents.

January 9, 2020

People v. Muhammad

2020 NY Slip Op 00180

This is a unanimous memorandum affirming the AD. Defense counsel at bar “impliedly consented” to the submission of written copies of the court’s entire final instructions to the jury. Any error is this regard was thus unpreserved for appellate review.

February 13, 2020

People v. Ramlall

2020 NY Slip Op 00995

This is a unanimous memorandum affirming the appellate term. After balancing the factors set out in People v. Taranovich, 37 NY2d 442, 445 (1975); CPL 30.20, the defendant’s claims do not rise to a level of a constitutional speedy trial violation regarding a lengthy delay of his prosecution for the traffic infraction of driving while ability impaired.

People v. Wheeler

2020 NY Slip Op 00998

This is a unanimous memorandum reversing the appellate term. The lower court accusatory instrument charging obstructing governmental administration (PL § 195.05) is dismissed, as the instrument was facially insufficient. Defendant was not put on notice of the “official function” that he purportedly interfered with. Such notice implicates the defendant’s constitutional rights to due process, to prepare a defense and to be protected from double jeopardy. Defendant was accused of not cooperating with law enforcement which was attempting to execute a search warrant on his vehicle as he was backing out of his driveway. There were insufficient nonhearsay allegations which, if true, would establish every element of the offense charged and the defendant’s commission thereof. See generally, People v. Kalin, 12 NY3d 225, 228-229 (2009); CPL 100.40(1)(c).

People v. Francis

2020 NY Slip Op 00996

This is a unanimous opinion authored by Judge Garcia, affirming the First Department. The defendant here had four prior felony convictions, often using different aliases along the way. The unique question posed to the state’s highest court was whether the defendant was “adversely affected” pursuant to CPL 470.15 (1) by the CPL 440 denial of his argument that his 1988 sentence was illegally lenient. If defendant could knock out this adjudication, which was illegal, then like dominos his subsequent recidivist felony offender judgments would theoretically follow. The court held that the jurisdictional restrictions of CPL 470.15 (1) apply to appeals from CPL 440 litigation. Being aggrieved under the statute requires that the defendant must have already been adversely affected, which is in the past tense. It can’t be a speculative future harm contingent on how future litigation is navigated; the provision in question does not encompass errors that may adversely affect the defendant. A court can only address a purported error or defect presently before it. Along these lines, the defendant actually received a windfall through his unusually low 1988 sentence. In and of itself, he was not adversely affected by the ruling; it merely kept in place his illegally lenient sentence. If just being denied a motion were enough to satisfy the statute, it would incentivize the delaying of postconviction proceedings.

February 18, 2020

People v. Anonymous

2020 NY Slip Op 01113

This is a 4 to 3 opinion, authored by Judge Rivera. The defendant was arrested for committing a crime after he entered a guilty plea. He asked that his sentence be adjourned until after the new matter was resolved. The jury acquitted defendant of the new charge and the records were sealed pursuant to CPL 160.50. In order to obtain evidence of the defendant violating a pre-sentence condition, the People secured an order staying the CPL 160.50 (1) sealing of these records. This order was erroneous. The information should never have been used to increase the defendant’s sentence for his A-II drug felony. The AD correctly found that the CPL 160.50 order was erroneous, but wrongly concluded that there was no remedy to be afforded. The matter was thus remitted for resentencing, as defendant should have been restored to his status before arrest with regards to the acquitted matter. CPL 160.50 (1) permits the unsealing of records and papers relating to an arrest or prosecution where the People, with at least five days’ notice, make a motion demonstrating that the interests of justice require the record to be unsealed. The purpose of CPL 160.50 is to protect the presumption of innocence and to keep individuals from suffering adverse consequences as a result of unfounded public accusations. None of the six exceptions to sealing records under CPL 160.50 (1) (d) were present. The sentencing court’s obligation to sentence defendants with accurate and reliable info does not outweigh this fact. The sentencing court may consider a defendant’s non-compliance with pre-sentence conditions in an Outley hearing, just not with sealed records. These did not constitute extraordinary circumstances warranting an exception under this carefully designed statutory framework. In dissent, the Chief Judge observed that the defendant was told to just stay out of trouble while awaiting sentencing. At bar, there would have been no stigma suffered by the defendant, as the acquitted charge would not have been considered. Rather, the sentencing court would have been considering reliable and accurate info in imposing its sentence and fulfilling its obligation to execute the terms of the plea agreement.

People v. Diaz

2020 NY Slip Op 01114

This is a 5 to 2 memorandum, with Judge Rivera authoring the dissent, joined by Judge Wilson. The AD, which affirmed the SORA risk level assessment finding defendant to be a level two offender, is affirmed. Here the presentence investigation report (“PSI”) authored by the probation department, which addresses the circumstances surrounding the offense and the defendant’s background (CPL 390.30[1]), indicated without any basis that the defendant “on one or more occasions … used physical force to coerce the victim into cooperation.” The Case Summary falsely stated that the PSI indicated that “on more than one occasion force was used.” These documents were used to justify an additional 10 points under the forcible compulsion factor of the risk assessment instrument, taking the score from the low risk level one to the moderate level two risk. People v. Mingo, 12 NY3d 563, 571-573 (2009) recognized that Corr. Law § 168-n(3) permits the admission of “reliable” hearsay in a SORA hearing. The accuracy of the PSI at bar was not challenged by counsel below. Terrific dissent here by Judge Rivera, addressing the SORA statutory regime under Corr. Law article 168 (see, footnotes 1 and 2), as well as the critical hearsay problem here.

Some Noteworthy Recent Second Circuit Criminal Decisions:

United States v. Wright 945 F3d 677 (12/19/19)

Here the defendant filed a pro se notice of appeal (“NoA”) in 2017, more than three years after he was sentenced in 2014 in the WDNY. This was obviously untimely under FRAP 4(b)(1)(A) (requiring under its 2009 amendment that where the government does not appeal, a NoA must be filed within 14 days of the judgment or order being appealed). Defendant claimed that he received ineffective assistance of counsel (“IAC”) under the Sixth Amendment as his attorney failed to file a NoA as timely requested. If defendant at bar had filed a 28 USC § 2255 post-conviction motion, a finding of IAC would require a remand for either resentencing or the entry of a new judgment. But unlike Fuller, defendant here filed his NoA after the one-year § 2255(f) time limitation had expired. Concerned that future defendants will simply substitute a timely § 2255 motion with a late NoA (thus circumventing the statute), the court ultimately remanded to the District Court with instructions to convert appellant’s untimely NoA into a habeas petition and for consideration of whether his petition is timely under § 2255(f)(4), either with or without an application of equitable tolling. Equitable tolling under § 2255 requires a showing of either due diligence in pursing appellate rights and that some extraordinary circumstances stood in the way of a timely filing of the petition. The latter includes the scenario where attorney negligence is so egregious as to become an effective abandonment of the attorney-client relationship; a much heavier burden than merely showing that defense counsel failed to file a timely NoA as requested.

United States v. Mumuni 946 F3d 97 (12/27/19)

This is a successful government’s appeal, vacating a sentence for substantive unreasonableness. Defendant pleaded guilty to conspiring to provide material support for a terrorist organization and attempting to murder an FBI agent with a kitchen knife. The advisory sentencing guidelines indicated a sentence of 85 years. The District Court in the EDNY sentenced the defendant instead to 17 years, an 80% downward variance from the guidelines range. According to the Second Circuit, this sentence was disproportionately lenient. Though a substantively unreasonable sentence is still a “rare case,” the Second Circuit believed this one fit the bill as the prison sentence here was “shockingly low.” The panel was not pleased with the exceptionally serious conduct at issue, which involved facilitating the travel of ISIS members and a domestic terrorist attack against a law enforcement officer in the name of ISIS. Moreover, where a District Court accepts a guilty plea including an allocution to the elements of the charged crime, it may not make subsequent contradictory findings of fact or otherwise minimize the conduct described at the defendant’s plea hearing. The District Court should not have selectively relied on mitigating factors under 18 USC § 3553 in considering the relative culpability of co-defendants. “While district courts have broad discretion at sentencing, this discretion is not unlimited.” On remand, the District Court must, consistent with § 3553(a), place greater weight at defendant’s resentencing to the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense, the need for the sentence to afford adequate deterrence to criminal conduct and the need to protect the public from future crimes committed by the defendant. Judge Hall concurred, but did not agree that a District Court should weigh the § 3553(a) factors differently in cases involving terrorism.

United States v. Silver 948 F3d 538 (2020)

This was a partial win here for the now former speaker of the NYS Assembly in a decision authored by Judge Wesley. There were two primary components of defendant’s bribery schemes wherein he used two law firms in which he was “of counsel,” as a vehicle to exploit his position for his personal gain, totaling over 3.5 million dollars in attorney referral fees extending over a decade. To begin with, the defendant performed official acts beneficial to a physician who referred mesothelioma patients to defendant’s firm to support its personal injury practice. With regards to the second law firm, the defendant received attorney referral fees for tax certiorari cases, wherein the defendant’s official acts included pushing for certain legislation involving tax abatement and rent stabilization, for two real estate developers. One of the developers also received tax exempt financing from the Public Authority Control Board through a “side letter” retainer agreement with the defendant. The court rejected the defendant’s first argument that his Hobbs Act extortion under color of official right and honest services fraud require evidence of a “meeting of the minds” to satisfy the quid quo pro component. Though the court also rejected defendant’s second argument that the government’s “as opportunities arise” theory of bribery did not survive McDonald, it ultimately found error in the District Court’s jury instructions regarding counts 1, 2 and 5, addressing his mesothelioma scheme. Those counts, which included honest services mail and wire fraud, as well as a Hobbs Act extortion count, were dismissed as there was insufficient evidence to sustain those allegations. McDonald requires that the public official understand a properly defined question or matter to be influenced at the time of the promise. In addressing the distinction between lobbying and bribery, the court observed that the criminal conduct in question must be more than a mere open-ended promise to perform official acts for the benefit of the constituent. Finally, Judge Lohier authored a concurrence to emphasize that the “as opportunities arise” doctrine remains alive and that neither Hobbs Act extortion nor honest services fraud require a meeting of the minds agreement. A

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