Amicus Update

2012

People v. James Extale: Court of Appeals brief filed on behalf of DAASNY by Manhattan Assistant District Attorneys Patrick Hynes and David Stromes. Extale relates to the People's power to withdraw a count on an indictment. DAASNY's amicus brief argues that, although nolle prosequi was abolished by statute in 1881, the enactment of the CPL in 1971 repealed that abolition, thus reviving the common-law rule by operation of law. The brief also highlights the prosecutor's need for such authority and discussed how court-imposed limitations on it implicated a separation-of-powers conflict between the Executive and Judicial spheres of government.

People v. Katherine Seeber: Appellate Division, Third Department, brief filed on behalf of DAASNY by Richmond County Assistant District Attorney Morrie I. Kleinbart, assisted by Westchester County Assistant District Attorney Anthony J. Servino and Queens County Assistant District Attorney Lois M. Raff. Seeber relates to post guilty plea discovery of potentially improper laboratory testing and subsequent CPL 440.10 vacatur. DAASNY's amicus argued argued that there was no Brady or Giglio violation since, under the relevant Supreme Court precedent, a failure to disclose even exculpatory information before a plea is taken violates no right. It also argued that the so-called exculpatory material had been discovered only after the judgment became final and thus, was really newly discovered evidence which could not form the basis of a vacatur following a guilty plea. It further pointed out that absent knowing involvement by the People in the purportedly fraudulent evidence presentation to defendant, relief was unavailable. Finally, it urged that counsel could not be deemed ineffective for any failure related to the materials discovered post-judgment.

People v. Christopher Porco: Court of Appeals brief filed on behalf of DAASNY by Manhattan Assistant District Attorney Susan Axelrod, assisted by Richmond County Assistant District Attorney Morrie I. Kleinbart. Porco relates to the admissibility of evidence of non-verbal assertive conduct by a victim in response to a detectives' questions of whether defendant had been the one who had attacked her and her husband. This conduct, a nod and a hand gesture, identified defendant as the killer. In addition, the victim testified that she had no memory of the events of the evening or of identifying defendant as the assailant. On appeal from the judgment of conviction, defendant claimed that admission of this assertive conduct violated the rule precluding hearsay and his right to confrontation. The Appellate Division rejected the latter argument, but did conclude that the non-verbal assertion was inadmissible hearsay. Nevertheless, that Court affirmed, concluding that the non-constitutional error was harmless. DAASNY's amicus amicus brief addressed the significant constitutional question raised by this appeal: whether the availability of a witness will render admissible, over a Confrontation Clause objection, the witness's testimonial, extrajudicial statement when the declarant/witness has no recollection of the events described in that statement. Reviewing a series of relevant Supreme Court precedent, the amicus argued that the victim's inability to recall did not render her unavailable such that admission of her out-of-court statement would violate defendant's confrontation rights as understood since Crawford v. Washington.

Giraldo v. Kessler: Second Circuit brief filed on behalf of DAASNY by Westchester County Assistant District Attorneys Anthony J. Servino, Richard Longworth Hecht, and Steven A. Bender. The case addresses the availability of absolute immunity to a prosecutor's conduct during a post-arrest interview of a witness preparatory to determining whether to initiate and conduct a prosecution. DAASNY's amicus argued that given its purpose, absolute immunity necessarily barred suit against a prosecutor by a witness in a criminal case when the civil claim challenges conduct occurring during such a post-arrest interview inasmuch as the conduct was quintessentially advocatory: to learn, review, and evaluate evidence from a material witness, the victim, preparatory to furthering the criminal prosecution against a defendant.

People v. Jeanne M. Vandover: The Appellate Term affirmed an order of a local Orange County court which had suppressed evidence on the ground that police observations of a woman glassy eyed and smelling of alcohol entering a car and driving from a parking lot into a public street were an inadequate basis to stop the vehicle because that evidence "failed to establish that defendant exhibited 'actual impair[ment], to any extent, [of] the physical and mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver' (People v Cruz, 48 NY2d 419, 427 [1979]). The People sought and obtained leave to appeal from the order of affirmance. DAASNY had not yet filed an amicus brief.

Matter of Soares v Herrick: The Appellate Division, Third Department, granted the DA's petition seeking to nullify the appointment of a Special District Attorney. That appointment had been made in connection with the investigation of the internet sales of steroids in Albany County by a pharmacy in Florida. At some point in the course of the criminal action, the pharmacy defendants sued the District Attorney and certain of his assistants in Federal District Court in Florida. After a motion to dismiss on absolute immunity grounds was denied, Albany County Court appointed a Special District Attorney on the theory that the pending lawsuit presented a "demonstrable potential for prejudice" and that the District Attorney had a "personal, professional and financial stake in the outcome of both the civil and criminal cases." The appeal to the Court of Appeals is in limbo; respondent-appellants appear to have obtained a lengthy extension, pending resolution of an application to the 11th Circuit for en banc review of that court's reversal of the District Court's order denying dismissal of the federal action. DAASNY had not yet filed an amicus brief.

2011

People v. David M. Harnett.  Filed by Westchester County Assistant District Attorneys Steven Bender and Richard Hecht and Richmond County District Attorney Morrie I. Kleinbart addressing whether a plea court has to advise a defendant, pleading guilty to a SOMTA eligible offense, that he may be subject to civil confinement when he has finished serving his sentence on pain of vacatur of the plea as unknowing.  The Court of Appeals held that that failure alone would not render a plea involuntary.  16 N.Y.3d 200 (2011).

People v Robert Alonso.  Filed by New York County Assistant District Attorneys Patrick Hynes and Sara Zausmer addressing whether a dismissal of an indictment, purporting to be pursuant to CPL 240.70(1), authorizing sanctions for discovery failures, is appealable.  The Court of Appeals reversed and reinstated the appeal.  2011 NY Slip Op 3649; 2011 N.Y. LEXIS 656.

People v. Alicia Lewie: Filed by Richmond County Assistant District Attorney Morrie I. Kleinbart addressing whether the indelible right to counsel attaches as a result of the appointment of an attorney in a Family Court removal proceeding arising from the same facts as the criminal prosecution.  The Court of Appeals affirmed and held that the appointment in the civil Family Court proceeding had no impact on the right to counsel.  2011 NY Slip Op 4766; 2011 N.Y. LEXIS 1393.

Matter of Brown v. Blumenfeld.  Filed by Onondaga County Assistant District Attorney James Maxwell in support of the petition of Queens County District Attorney Richard A. Brown seeking an order prohibiting a trial judge, conducting a suppression hearing, from soliciting evidence about the ethical issues surrounding post-arrest interviews of defendants.  This matter remains pending in the Appellate Division, Second Department.

Amicus Briefs Previously Filed by DAASNY

Cayuga Indian Nation of New York v. State of New York.  Filed by Westchester Assistant District Attorneys Anthony Servino and John Carmody and Richmond County Assistant District Attorney Morrie I. Kleinbart addressing the propriety of the commencement by the subject of a criminal proceeding of a declaratory judgment action challenging the District Attorney’s action in a particular case.  Unfortunately, the Court of Appeals held that there was nothing improper in commencing such an action.  14 N.Y.3d 614 (2010).

William Phillips v. Dale Artus and Andrew M. Cuomo; Carlos Portalatin v. Harold Graham; Vance Morris v. Dale Artus and Andrew M. Cuomo - Filed by New York County Assistant District Attorneys Hilary Hassler, Alan Gadlin, and Christopher Marinelli, Richmond County Assistant District Attorney Morrie Kleinbart, and DAASNY President, Warren County District Attorney Kathleen Hogan re: persistent felony offenders. The opinion in Portalatin v. Graham is available for your reading pleasure at http://www.ca2.uscourts.gov/decisions/isysquery/f5055664-54ba-4e91-8aee-03cae12d0b33/4/doc/07-1599-pr_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f5055664-54ba-4e91-8aee-03cae12d0b33/4/hilite/

Harry F. Connick, et al., v. John Thompson - Filed by Westchester Assistant District Attorneys Anthony Servino and Steven Bender, Queens Assistant District Attorney Edward Saslaw, and DAASNY President Warren District Attorney Kathleen Hogan re: Brady and prosecutors.

People of the State of New York, ex rel., Anthony Gill v. Gary Greene - Filed by NYPTI and DAASNY President, Warren County District Attorney Kathleen Hogan with assistance from the Richmond County District Attorney's Office and the Bronx District Attorney's Office. Penal Law Section 70.25(2-a) – must a court explicitly impose the consecutive sentence mandatory on a conviction for a crime committed while the defendant was subject to a previously imposed but undischarged sentence?

Kimberly Hurrell-Harring, et al. v. The State of New York, et al. - Filed by Richmond County Assistant District Attorney Morrie Kleinbart and DAASNY President, Warren County District Attorney Kathleen Hogan re: the propriety of litigating in a civil class action a claim of systemic ineffective assistance of counsel provided by appointed counsel.

People of the State of New York v. Tara Gravino - Filed by Westchester Assistant District Attorneys Steven Bender and Anthony Servino and DAASNY President, Warren County District Attorney Kathleen Hogan. Does plea court have to advise defendant, pleading guilty to a SORA eligible offense, that she will be subject to SORA registration on pain of vacatur of the plea as unknowing?