Appellate Report

Continued from previous page circumstantial. The evidence supporting the defendant’s purported intent was remote from the occurrence of the offense.

People v. Wilkins

37 NY3d 371

This is a 4 to 3 decision, authored by the Chief Judge. Judge Fahey wrote the dissent, joined by Judges Rivera and Wilson. The Fourth Department is affirmed. In contrast to the Court’s previous jurisprudence, the defendant’s pre-waiver Antommarchi issue required preservation. See generally, People v. Antommarchi, 80 NY2d 247, 250 (1992); People v. Davidson, 89 NY2d 881, 882 (1996).

A defendant has a “critical” statutory right recognized in Antommarchi to be present for side bar conferences during voir dire, in order to have meaningful input and participation in picking potential jurors. See, CPL 260.20. The defendant needs to be personally present to assess the jurors’ facial expressions and demeanor. This permits a defendant the opportunity to detect a perspective juror’s hostility and bias, and provide valuable input regarding defense counsel’s discretionary decision. Here, the defendant was only given his prerequisite warnings (and then waived his general Antommarchi rights) after the sidebar in question for which defendant was not present. The perspective juror in question was ultimately struck peremptorily by the co-defendant.

The majority emphasized that defendant could observe the exchange between the parties in open court, completely ignoring the importance of his Antommarchi right, which enables him to be personally present for the exchange. The majority noted the defendant had the opportunity to protest the error in question; it was curable during the voir dire process. Instead the defendant acquiesced. See also generally, People v. Nealon, 26 NY3d 152, 160-163 (2015) (O’Rama error requiring objection, where defendant had sufficient notice of jury note).

In dissent, Judge Fahey reminds us of the fundamental right to be present during material stages of the trial. Antommarchi, supra at 250; People v. Vasquez, 1 NY3d 44, 47 (2003). There is no dispute that an Antommarchi error occurred, as there was no waiver of rights before the side bar occurred in the defendant’s absence. The majority has reversed 30 years of that unless the Court or the legislature correct the majority’s error, future defendants need to object now to an Antommarchi error.

December 16, 2021

People v. Lamb

37 NY3d 1174 established jurisprudence in requiring preservation here. It will impair a defendant’s right to be present at every material stage of the trial. Similar to Ventimiglia issues, a general post-violation waiver is insufficient and must not be applied retroactively. See, People v. Spotford, 85 NY2d 593, 587-599 (1995). The postviolation waiver here was only meant for going forward and did not explicitly reference the particular Antommarchi violation that had already occurred. The two prejudice-related exceptions to an Antommarchi violation reversal (where the defendant’s presence could not have affected the outcome or where the sidebar is replicated later) are inapplicable here. Having a so-called opportunity to view the perspective juror in court, as the majority observes, ignores the importance of being personally present at the side bar conference. Judge Fahey opines

This is a splintered memorandum, with Judges Singas (joined by the Chief Judge and Judge Cannataro) and Wilson (joined by Judges Rivera and Garcia) writing separate concurrences. Judge Fahey was the lone dissenter. At issue was the propriety of jury instructions regarding two sex trafficking counts under PL § 230.34. At the time of the law’s enactment, NYS was the fourth busiest point of entry for sex trafficking in our country. The initial jury instructions accurately presented the law. However, a new trial was ordered because of erroneous supplemental jury instructions which severed the link between two separate (but connected) statutory elements. These elements require that the offender advance or profit from prostitution and do so by one of the specific enumerated coercive acts, all of which are common in the sex trade. These acts include threatening physical force, making false statements, withholding a passport, damaging property, falsely accusing a person of a crime and blackmailing.

Here the defendant’s conduct occurred in both New York and New Jersey, involving two complainants, ages 18 and 22 respectively. Young women in homeless shelters in both states were targeted, beginning with online escort advertisements. The prosecution theorized the defendant mostly promoted these crimes in NYS and committed the coercive acts in NJ.

Jurisdiction concerns the power of the state to bring a criminal proceeding. See also generally, People v. Werblow, 241 NY 55, 60 (1925) (Judge Cardozo addressing the scenario of where an offender commits only part of his or her conduct within NYS). A jurisdictional defense was raised under CPL 20.20(1), as the People were obligated to establish beyond a reasonable doubt at least one element of the crime either occurred or was attempted in NYS. The defendant contended the “core” coercive conduct was required to have occurred in NYS. Here, the coercive acts only occurred in New Jersey.

The jury requested clarification regarding the elements, to which the court supplemented its original instruction, informing the jury that the first element was not specific to either complainant. The jury convicted on a sex trafficking count for one complainant, but not the other. The Court observed the similarity between the sex trafficking statute and first-degree promoting gambling under PL § 225.10(1), as both are premised on advancing or profiting from a certain illegal activity by performing certain affirmative acts. See, People v. Giordano, 87 NY2d 441, 447 (1995) (concluding the gambling statute contains in fact two elements). Collapsing the statute into a single element casts too small a net for what the legislature intended. The two main elements here are both separate and linked. Defendant’s argument would effectively require two PL § 230.34 elements, not one, be established in NYS for courts to obtain jurisdiction.

The way forward following this decision maybe unclear. The Judge Singas concurrence opined the trial court should have clarified the jury’s inquiry under CPL 310.30 instead of effectively severing the link between the two elements. Rather than responding in a meaningful manner, this supplemental instruction effectively contradicted the trial court’s own initial instructions, muddled the definition of the crime and confused the jury. This further left the reviewing court without assurance that the jury applied the proper standards for both jurisdiction and the elements of the charged crimes. A new trial is thus in order. Judge Wilson’s concurrence, though condemning the supplemental instruction as improperly severing the elements, concluded that NYS did not have jurisdiction to prosecute the PL 230.34 statute without showing coercive conduct was used on a particular victim. Jurisdiction here requires that the two elements be linked. Further, Judge Wilson disagrees with Judge Singas’s analogy to the Giordano gambling case, as it leads to unreasonable results. Judge Fahey in dissent correctly concludes that the decision is confusing, providing the trial court little guidance upon remittal. It was also contradictory to find the supplemental instruction to be erroneous while also finding there to be legally sufficient evidence for geographic jurisdiction. Stay tuned.

January 6, 2022

People v. Sposito

37 NY3d 1149

This is a 5 to 1 memorandum, affirming the AD. Judge Wilson authored the dissent. Judge Troutman did not participate. The defendant was not deprived of ineffective assistance of counsel under either the state or federal constitutions, People v. Baldi, 54 NY2d 137, 147 (1981); Strickland v. Washington, 466 US 668, 690-691 (1984), by waiving a Huntley hearing. Rather, it was a reasonable trial strategy to take the sting out of defendant’s statements and fend off their use in impeachment of the defendant. Not using expert testimony also did not reach the level of ineffective assistance, as counsel was able to obtain key concessions from the People’s experts during cross-examination.

January 11, 2022

People v. Ortiz

37 NY3d 1157

This is a unanimous memorandum, affirming the AD. The Miranda-related issue of post-warning statements being admissible is unpreserved. The admission of defendant’s initial unwarned statements was harmless error. People v. Crimmins, 36 NY2d 230, 237 (1975). There was no ineffective assistance of counsel and the trial court did not abuse its discretion in summarily denying the defendant’s CPL 440.10 motion.

February 10, 2022

People v. Johnson

37 NY3d 1166

This is a unanimous and brief memorandum reversing the AD. The waiver of appeal, which included a suppression issue, was invalid, as it conflated the rights the defendant was giving up in pleading guilty, as opposed to those surrendered by waiving the right to appeal. See, People v. Moyett, 7 NY3d 892, 892-893 (2006); see also generally, People v. Holz, 35 NY3d 55 (2020) (terrific decision on CPL 710.70(2) suppression issues surviving the entry of a guilty plea).

February 15, 2022

People v. Duarte

37 NY3d 1218

This is a 4 to 2 memorandum, affirming the Appellate Term. Judge Rivera authored the dissent, joined by Judge Wilson. Judge Troutman did not