Appellate Report

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Subcommittee should not supplant the courts’ obligation under Frye. Indeed, the Confrontation Clause and Crawford were violated as the source code was testimonial. See generally, Crawford v. Washington, 36 US 36, 42 (2004); Bullcoming v. New Mexico, 546 US 647, 657 (2001); Hemphill v. New York, 595 US __ , 142 S.Ct. 681, 692 (2022); People v. John, 27 NY3d 294, 303 (2016). There was no viable challenge to the conclusions based on the TrueAllele algorithm linking the defendant to the murder. But as the evidence of the defendant’s guilt was overwhelming, these constitutional errors were harmless beyond a reasonable doubt. People v. Crimmins, 36 NY2d 230, 237 (1975).

May 19, 2022

People v. McKenzie-Smith

38 NY3d 1048

This is a successful People’s appeal. The AD erred in reversing defendant’s People v. Antommarchi, 80 NY2d 247 (1992) claim. See, People v. Wllkins, 37 NY3d 371, 380 (2021). All members of the panel concur except for Judge Troutman who did not participate.

People v. Rodriguez

38 NY3d 151

This is another successful People’s appeal. The Second Department’s 3 to 2 reversal is unanimously reversed in an opinion authored by Judge Cannataro. The trial court acted within its discretion as a matter of law in admitting into evidence screenshots of explicit text messages in this attempted use of a child in a sexual performance / disseminating indecent material to minors prosecution. The screenshots were a fair and accurate representation of the messages. See, People v. Price, 29 NY3d 472, 477 (2017). There was a legal foundation for the lower court’s trial ruling. Participants in the relevant events properly authenticated the texted conversations, which were further corroborated by phone records.

May 24, 2022

People v. Mitchell

38 NY3d 408

This is a 5 to 2 opinion, authored by Judge Garcia. Judge Rivera wrote the dissent, joined by Judge Wilson. The Appellate Term is affirmed. The homeless defendant purportedly attempted to elicit fake donations for the homeless. On an early February evening in 2016, he set up a table (with two milk crates) on a sidewalk near Times Square in the heart of Midtown Manhattan. He didn’t approach anyone and no one spoke to him. But this was a busy sidewalk, requiring the Theater District people to walk around him. The defendant entered a guilty plea. The issue was whether Mr. Mitchell’s conduct satisfied the PL § 165.30(1) fraudulent accosting statute.

A person is guilty of this “A” misdemeanor when he or she “accosts a person in a public space with intent to defraud him [or her] of money or other property by means of a trick, swindle or confidence game.” The law, originally enacted in 1952 to address the difficult-to-prove act of street swindling, is centered around what “accosting” means. But “accost” is not defined in the statute. The majority rejected any requirement of the defendant having to physically approach anyone or to act with any aggressiveness or persistence. Many sidewalk scams begin with passive aggressive behavior. The dictionary definitions at the time of the law’s enactment included to “approach,” to “speak to” and to “address.” The defendant needs only to make an affirmative act. Merely “stationing” him or herself in a location is insufficient. Here, the defendant blocked the sidewalk, requiring pedestrians to walk around him.

As Judge Rivera observed in dissent, the majority’s ruling comes perilously close to criminalizing protected speech, including in the religious and political spheres. Said Judge Rivera:

[d]efendant no more accosted the passersby than would a religious leader who stands on the corner requesting contributions to a place of worship or a local homeless shelter, the Salvation Army Officer who positions a bucket in front of a store and rings a bell asking for donations to help the needy, the peace activist who stands in front of an entrance to Central Park who calls for an end to war and for civil disobedience, or the person who stands in the middle of the block holding a sign asking for food because they are hungry. In each case, the individual makes a general request of anyone who can hear or see them to act on their conscience. The fact that a pedestrian must make a minor adjustment to their preferred street path does not turn the speech into an accosting or mean that they have accosted everyone who chose to avoid them by changing direction. Walking around people is part of daily coexistence in public spheres and we would be hard pressed to find a passerby who would think themselves accosted every time they had to walk around someone talking in the middle of the street or on the corner. People often have to bob and weave, duck and dive, maneuver and negotiate to make their way around others standing, walking, or sitting in their way. There is no unbroken line of passage on a New York City sidewalk, and certainly not one as busy as that found in the Theater

District, or the exact street corner where defendant was observed— 48th and Broadway—where, at the time of defendant’s arrest, large numbers of people were likely stepping on or off the curb shortly before curtains rose on the evening’s performances.

Indeed, the defendant was just standing on a street corner. He spoke to no one and no one spoke to him. The statute must require an affirmative, offensive or aggressive act - - some sort of initiated contact or a directed invitation for such contact with a specific target. The accusatory instrument at bar did not even allege that the defendant interacted with anyone. No one was targeted. Just generally (or passively) calling out to the public to donate should not be deemed sufficient. The defendant was homeless and just trying to survive.

People v. Wideman

38 NY3d 1067

This memorandum is a unanimous affirmance. The reasonable suspicion determination issue regarding the officer’s pat and frisk was a mixed question of law and fact. Here there was record support for the AD’s finding. Moreover, the defendant failed to establish prejudice regarding his Brady claim. See, People v. Garrett, 23 NY3d 878, 892 (2014).

People v. Garcia

38 NY3d 1137

This is a 4 to 2 memorandum, affirming the Appellate Term. Judge Wilson dissented, joined by Judge Rivera. This was a public lewdness prosecution wherein the defendant was alleged to have committed misdemeanor sex crimes on a NYC subway. He was convicted of a “B” misdemeanor following a bench trial pursuant to the former CPL 340.40. The non-citizen defendant failed to overcome the presumption under People v. Suazo, 32 NY3d 491, 493, 507 (2018) that the crime charged was petty to establish a Sixth Amendment right to a jury trial. The defendant’s assertions were said to be merely conclusory.

In dissent, Judge Wilson, who also dissented in Suazo, observes the defendant explicitly asserted below he was a noncitizen and cited to the Immigration and Nationality Act (8 USC § 1227(a)(2)(A) (ii)), which indicates that conviction of two or more crimes of moral turpitude makes an alien deportable. The majority has created an unnecessarily ambiguous and heightened burden beyond what Suazo held -- leaving future defendants to “wonder” how to assert their Suazo rights. Indeed, defendant Garcia made a greater showing than defendant Suazo did, yet did not benefit from the latter’s ruling. Few defendants will be able to meet this new and more exacting standard, particularly in light of the complexity of immigration law.

Further commentary: As observed by the majority in footnote 1, our state legislature amended CPL 340.40, effective June 1, 2022. The right to a jury trial now extends to all defendants charged with misdemeanor offenses in local courts.

People v. Deverow 38 NY3d 157

This is a unanimous reversal of the defendant’s murder conviction, authored by Judge Singas. Defendant was convicted by a jury in this gang shooting death case in Queens. One eyewitness testified at trial. There were four evidentiary preclusions which deprived Mr. Deverow a meaningful opportunity to present a defense. This constitutional right is guaranteed by the Due Process Clause of the 14th Amendment, as well as the Compulsory Process and Confrontation Clauses of the 6th Amendment. Chambers v. Mississippi, 410 US 284, 302 (2011); Crane v. Kentucky, 476 US 683, 690 (1986). The defense was precluded from introducing three 911 calls, which should have come in under the present sense impression hearsay exception. See, People v. Brown, 80 NY2d 729, 736 (1993); People v. Cantave, 21 NY3d 374, 382 (2013) (recognizing that out-of-court statement must be made by the person perceiving the event as it’s unfolding and must be corroborated by independent evidence establishing its reliability). Also precluded was a defense witness who may have directly contradicted the sole eyewitness to testify for the prosecution. The evidence presented against the defendant’s justification defense was not overwhelming. A new trial is thus in order.

June 14, 2022

People v. Stroud

38 NY3d 1130

This is a 6 to 0 affirmance of the AD. Judge Troutman did not participate. The lower court’s determination of reasonable suspicion regarding this vehicle stop is a mixed question of law and fact. There was record support for the lower court’s decision.

People v. Huertas

38 NY3d 1129

This is a 6 to 1 affirmance of the AD. The lower court did not abuse its discretion in reserving decision on a Molineux application regarding prior gun-related convictions until after defendant testified. People v. Molineux, 168 NY 264, 294 (1901). Any errors regarding this issue were harmless.