Court of Appeals - 2008 Term

Fully Argued

Tina Jackson Suffolk County ADA Karla Lato Reversed,2/7/08 In a non criminal proceeding pursuant to the District Attorney's responsibilities under section 8 of the Indian Law, the determination of the Indian tribe on a reservation as to an "intruder" is binding on the courts. Michael Rawlins Dwain Meekins NY County ADA David M. Cohn (Rawlins), Kings County ADA Anthea H. Bruffee (Meekins) Affirmed,2/19/08 Under the Confrontation Clause, a report of a "lab technician[,who]ordinarily has no subjective interest in the test's outcome, and could hardly affect the result in any event [since]the analyst ... simply record[s], contemporaneously, the administration of scientific protocol to reveal what is hidden from the naked eye" is admissible as is a report by an outside lab or the medical examiner which does not "directly link defendant to the crime" but must be reviewed by an expert who can use the information to implicate a specific defendant. On the other hand, the report of a police officer who has "compare[d]unknown latent prints from the crime with fingerprints from a known individual" is testimonial and cannot be received in evidence as a "substitute for live testimony" since the officer is, in essence "testifying through his reports that, in his opinion, defendant is the same person who committed the [crime]..." (internal quotations omitted). Gary Freycinet Queens County ADA Jennifer Hagan Affirmed, 6/26/08 Autopsy report by independent medical examiner "redacted to eliminate his opinions, was very largely a contemporaneous, objective account of observable facts" and hence nontestimonial and admissible under Crawford v Washington, 541 U.S. 36 (2004) Jose Leon NY County Appeals Bureau Chief Mark Dwyer Affirmed,2/19/08 At hearing to determine whether defendant was a persistent violent felony offender, the Confrontation Clause does not require a witness to testify to reports on DNA analysis and fingerprint comparisons prepared by experts and persistent procedure does not violate the Constitution. James Barbour(Article 78 sub nom Fischetti v. Scherer) NY County ADA Ameer Benno lv granted, --NY3d-- AD opinion, 44 A.D.3d 89 Was defense attorney entitled to a writ of prohibition against enforcement of an order, granted on People's application, directing defense counsel to refrain from publishing the name of the complainant in sex crime prosecution? Azim Hall NY County ADA Eric Rosen Reversed,3/25/08 Police were required to obtain a search warrant before extracting small bag secreted within defendant's rectum after observing a string protruding from him following his arrest for criminal sale of a controlled substance in the third degree Jose Martin Taveras Anthony Jones NY County ADA Nicole Beder (Taveras) Bronx Co ADA Jean Soo Park (Jones) Affirmed,3/18/08 Under CPL § 470.60[1], AD has discretion to dismiss appeal when former fugitive is returned to custody and hence available to obey mandate of the Court and "may consider "whether defendant's flight caused a significant interference with the operation of [the] appellate process...whether defendant's absence so delayed the administration of justice that the People would be prejudiced in locating witnesses and presenting evidence at any retrial should the defendant be successful on appeal ... the length of the defendant's absence ...whether defendant voluntarily surrendered; the importance and novelty of the issues raised on appeal ... and the merits of the appeal." (internal quotes and citations omitted) Marcos Urbaez Bronx County ADA Allen Saperstein Affirmed, 3/13/08 The District Attorney's "broad discretion to decide what crimes to charge ... including reducing a charge when appropriate" permits the People to move to reduce a complaint charging the class A misdemeanor of aggravated harassment in the second degree to the class B misdemeanor of attempted aggravated harassment even though defendant would have been entitled to a jury trial if prosecuted on the original aggravated harassment charge. Gary White Kings County ADA Camille O'Hara Gillespie Affirmed,3/20/08 Although defendant was subjected to a brief period of custodial interrogation or its functional equivalent prior to the administration of Miranda warnings,in which he made no inculpatory statement or any statement relating to his conduct in connection with the crime under investigation his post- Miranda sessions were admissible, not simply because his earlier statements were not inculpatory but since the 15 to 20 minutes since the earlier questioning "was sufficiently pronounced to dissipate the taint of the Miranda violation." Joseph Windham Kings County ADA Anthea H. Bruffee Affirmed,3/25/08 Defendant's challenge to application of SORA to him, or whether procedure used to determine how and whether to classify him violates due process, was not preserved in the trial court. Although "a challenge to an unauthorized or illegal sentence falls within a narrow exception to the preservation rule...a SORA risk-level determination is not part of a defendant's sentence [but r]ather ... a collateral consequence of a conviction for a sex offense designed not to punish, but rather to protect the public" (citations ommitted). Curtis Mitchell New York County ADA Eric Rosen affirmed, 4/24/08 Defendant's unpreserved argument that the jury was improperly instructed that it could convict him of burglary if it found he illegally entered premises on one of two instances 14 hours apart even though bill of particulars mentioned only the first entry was waived since the issue as to whether there were two separate burglaries or one does not raise a jurisdictional defect concerning the indictment. Daniel Sparber Robert Thomas John Lingle Manuel Rodriguez Elliott Garner (Article 78 against DOCS) Anthony Ware New York County ADA David M. Cohn (Sparber) New York County ADA Vincent Rivellese (Thomas, Lingle) New York County ADA Susan Axelrod (Rodriguez) Assistant Solicitor General Laura R. Johnson (Garner) Kings County Appeals Bureau Chief Leonard Joblove (Ware) affirmed Sparber, Thomas, Lingle Rodriguez and Ware, as modified, 4/29/08 reversed Garner, 4/29/08 Since statute requires a period of post-release supervision ("PRS") as part of a sentence, trial court's failure to expressly impose it in open court requires that the case be remanded for the court to do so and DOCS may not simply administratively add the sentence. Defendants who were not told of the PRS compnent before pleading guilty must be permitted to withdraw their plea under People v. Louree, 8 N.Y.3d 541 (2007) and People v. Catu, 4 N.Y.3d 242 (2005) Brett Cabrera Sullivan County DA Stephen F. Lungen counts charging criminally negligent homicide and assault dismissed but otherwise affirmed, 5/1/08 Evidence that defendant, who was under 21 years old, was driving four of his friends to a lake, at 72 miles an hour rather than the posted 55 mph speed limit, when he lost control of his vehicle and crashed into a telephone pole and tree, killing three of his four teenage passengers and fracturing the spine of the fourth did not establish criminally negligent homicide since "it takes some additional affirmative act by the defendant to transform 'speeding' into "dangerous speeding"; conduct by which the defendant exhibits the kind of 'serious[ly] blameworth[y]' carelessness whose 'seriousness would be apparent to anyone who shares the community's general sense of right and wrong'" quoting from People v. Boutin, 75 NY2d 692, 696 (1990), and the violations of the conditions of the defendant teenager's license did not "caus[e] orr contribut[e] to the risk of an automobile accident [or]the crash." Isaias Umali New York County ADA Susan Axelrod affirmed, 5/6/08 Defendant was not deprived of the right to counsel when the trial was adjourned for five days in the midst of his testimony and the judge instructed defense counsel not to discuss his testimony with him since counsel did not preserve an objection to the order for the first day and a half and when he did object the trial court rescinded its order "verified that defense counsel were aware they could consult with defendant about his testimony." The trial court's instruction suggesting that defendant bore burden of proving that he believed the use of deadly force was necessary though "erroneous because ... it was the People's burden to prove that defendant did not believe deadly force was needed" was an isolated portion of the instructions and taken as a whole "that single misstatement could not have led the jury to conclude that the justification defense was established only if defendant proved that he thought deadly force was necessary." Prior consistent statement offered to rebut claim of recent fabrication is admissible only "if it was made before [declarant] had a motive to lie." Ruben Luciano (People's Appeal) Bronx County ADA Jennifer Marinaccio affirmed, 6/3/08 While trial court may require forfeiture of improperly used peremptory strikes as a penalty for a "reverse-Batson violation, it should be employed only in the exercise of discretion in the rare case and "where the finding of discrimination is close, forfeiture may not be an appropriate remedy" and since trial court did not exercise discretion but believed it was a mandatory penalty, conviction was properly reversed Robert Finley Kyle Salters Orleans County District Attorney Joseph V. Cardone (Finley) Franklin County ADA Glenn MacNeill (Salters) modified by reducing convictions, 6/10/08 small amounts of marihuana, which would serve the basis only for a violation outside a prison, do not constitute "dangerous [prison] contraband" under Penal Law §§ 205.00 (4) and 205.25 (2) since that term applies only to those items with "particular characteristics ... such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility's institutional safety or security." Burton Jeffrey Hunter Rensselaer County ADA Ian H. Silverman Reversed, 6/12/08 In rape trial, complainant's rape complaint in another county against a different man in the weeks prior to defendant's trial constituted Brady material which would have been admissible at trial and hence, there was a "reasonable probability that had [it] been disclosed to the defense, the result would have been different -- i.e., a probability sufficient to undermine the court's confidence in the outcome of the trial." See People v Bryce, 88 NY2d 124, 128 (1996) Nagmeldeen Azaz Kings Co ADA Ruth E. Ross Affirmed, 6/3/08 Defendant's challenge to the legal sufficiency of evidence that he stabbed his wife to death and murdered his son sufficient to establish depraved indifference murder was not adequately preserved for appellate review and defendant was properly sentenced consecutively for each murder "even assuming that the two blows that resulted in the baby's death were the product of acts committed against the mother after defendant placed the child in her arms [since] defendant inflicted 15 additional blows...'[T]rial courts retain consecutive sentence discretion when separate offenses are committed through separate acts, though they are part of a single transaction' (People v Brown, 80 NY2d 361, 364 [1992])" Santos Suarez (Article 78) Bronx County Chief Appellate Attorney Peter Coddington affirmed, 6/3/08 Acquittal of intentional murder and reversal of depraved indifference murder conviction for legal insufficiency did not retrial for first-degree manslaughter -- a count submitted to but not considered by the jury at first trial Fatin Johnson NY County ADA Susan Gliner Reversed, 6/3/08 "[H]aving chosen to manifest its weight of the evidence review power...the Appellate Division [did] not say that it assessed the evidence in light of the elements of the crime as charged to the jury, and [its] opinion does not otherwise offer confirmation that, in fact, it did." Hence, case must be remitted to AD for it to conduct such a review Roman Baret Bronx County ADA Dana Levin Affirmed, 6/25/08 Court's discretion in summarily denying defendant's motion to withdraw his guilty plea, a motion on which a defendant is rarely entitled to a hearing, was supported by record despite defendant's claim "that he pleaded guilty only because he was afraid [his co-defendant] would have killed or injured him if he did not." Franklyn Montilla NY County ADA Martin J. Foncello Affirmed, 6/25/08 Defendant, who had pled guilty to another crime but not yet sentenced when he committed what would otherwise be criminal possession of a weapon in the fourth degree, may be prosecuted for the third degree crime by reason of his prior "conviction." Donnie Simmons New York County ADA Ellen S. Friedman Affirmed, 7/1/08 Defendant was not "constructively unrepresented" when case was presented to the grand jury simply becuase his attorney was not on the 18-B panel for felonies. "[D]efendant failed to establish that he was prejudiced by the failure of his attorney to effectuate his appearance before the grand jury. Significantly, there is no claim that had he testified in the grand jury, the outcome would have been different." Dennis Kozlowski Mark Swartz New York County ADA Amyjane Rettew (both cases) Affirmed, 10/16/08 Evidence that CFO and CEO of multinational public corporation took bonuses which compensation committee, had the authority to grant, but whose living members all testified that they had not, was legally sufficient to establish grand larceny, defendants subpoena for attorney work product of a firm which conducted an investigation for the corporate victim was properly quashed because although defendants pointed "to specific facts demonstrating a reasonable likelihood that" relevant and exculpatory evidence would be disclosed as required under under People v Gissendanner, 48 N.Y.2d 543,550 (1979),the trial court's finding that the attorney work product was privileged was the result of an adequate balancing of "the rights and interests of law enforcement, corporations and their employees, and the accused," testimony by attorney who conducted the investigation was at to facts and attorney did not express opinion as to defendants' guilt, and any Apprendi violation by fine based on the defendants "gain" was harmless. Jamie Smith Suffolk County ADA Michael J. Miller Reversed, 10/16/08 In classifying defendant under SORA, "County Court did not adequately set forth the findings of fact and conclusions of law on which it based its decision to assess defendant 20 points under the risk factor pertaining to defendant's relationship with the victim -- the evidence upon which the court found that the victim was a stranger or determined that defendant had 'established or promoted' the relationship for the primary purpose of victimization." Delon Lucas Kings County ADA Keith Dolan Affirmed, 10/21/08 Defendant's argument that "the facts stated in the indictment do not constitute the crime of first degree murder...attacks the facial sufficiency of the accusatory instrument, and [was] not forfeited by defendant's guilty plea" [editor's note: but see People v. Cohen, 52 N.Y.2d 584 (1981)] but defendant was nonetheless not entitled to dismissal of that count simply because the death of his kidnapping victim also met an element of kidnapping 1 because "the murder defendant committed and the predicate crime that serves as an aggravation [to murder 1 from murder 2] arise from two distinct intents -- the intent to kill the victim and the intent to abduct him." Jonathan Jenkins NY County (Special Narcotics Prosecutor) Affirmed, 10/23/08 Under a plea agreement under which defendant agreed that "Whether the defendant violates the terms and conditions of this agreement is at the sole discretion of [the prosecutor] and the court" the sentencing court and People were "entitled to insist on strict compliance with every term" and not obligated to join in a motion to dismiss the indictment as agreed upon unless and until defendant complied with all the terms of the plea agreement, whether "minor" or not. Lionel Jones Erie County ADA Michael J. Hillery Affirmed, 10/28/08 "'sketchy assertions' and declarations that the prospective juror 'indicated no reason why [the juror] could not serve fairly' are, standing alone, generally insufficient to establish a prima facie case of discrimination" in support of a Batson application. Clarence Johnson Genesee County ADA David Gann Affirmed, 11/24/08 Defendant, convicted of attempted first degree promoting a sexual performance by a child, after possessing images on his computer of a child less than 17 years of age engaging in sexual conduct, properly assessed points for SORA classification on the ground that the child whose image he possessed was a "victim" and that the victim was a stranger or that defendant had 'established or promoted' the relationship for the primary purpose of victimization" even though "it does not seem that [this f]actor was written with possessors of child pornography in mind [since] neither the Board [of Sex Examiners] nor the court was bound to choose the risk level indicated by defendant's point total. And although the Board did choose that risk level, the court was not bound to follow the Board's recommendation." Avion Resources Ltd. (DA's appeal) NY County ADA Michael S. Morgan Modified, 11/20/08 Service of a complaint in an Article 13-A forfeiture on Brazilian nationals involved in 2002 in an illegal money transmittal businesses operated using accounts at the Manhattan branch of Merchant's Bank (now Valley National Bank)proper even though it did not comport with the law of Brazil. Sheldon Ennis NY County ADA Susan Axelrod Affirmed, 11/20/08 Defendant was not deprived of effective assistance of counsel or entitled to a new trial because People did not disclose that co-defendant brother had confessed to a 1998 shooting and exonerated defendant, information conveyed to defense counsel by co-defendant's counsel during their joint trial, on a promise of confidentiality that defense counsel honored. Jason Naradzay Onondaga Co ADA Victoria M. White Affirmed, 11/24/08 Evidence that defendant, arrested after pointing to a loaded shotgun in a snow bank, was carrying 21 shotgun shells in his pockets along with a "to-do list" that outlined a plan to break into the home of a female acquaintance, who lived close by, and to kill her and her husband in front of their three children was legally sufficient to support attempted murder and attempted burglary convictions. Jean Yves Jean-Baptiste (People's Appeal) Kings Co ADA Ruth E. Ross Affirmed, 11/25/08 Defendant convicted of "depraved indifference murder" before Feingold, 7 NY3d 288 (2006) held that "depraved indifference to human life is a culpable mental state" but pending on direct appeal when that case was decided, was entitled to review on the basis of that case since it was "on direct appeal" and "the defendant ... adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction. Roberto Castellano Bronx Co ADA Lawrence H. Cunningham Affirmed, 11/25/08 Defendant convicted of "depraved indifference murder" before Feingold, 7 NY3d 288 (2006) held that "depraved indifference to human life is a culpable mental state" but pending on direct appeal when that case was decided, was not entitled to review on the basis of that case since, though it was "on direct appeal" when Feingold he did not sufficiently preserve the legal sufficiency argument in terms of Hawkins, see below. Raymond C. George (People's Appeal, in part) Schoharie County District Attorney James Sacket Affirmed, 11/25/08 Defendant convicted of "depraved indifference murder" before Feingold, 7 NY3d 288 (2006) held that "depraved indifference to human life is a culpable mental state" but pending on direct appeal when that case was decided, was entitled to review on the basis of that case since it was "on direct appeal" and "the defendant ... adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction. Bryan R. Hawkins Juan Eduardo Monroe County ADA Kelly Christine Wolford (Hawkins); NY County ADA Patricia Curran (Eduardo) Affirmed, 11/25/08 Argument for trial order of dismissal where defendant, who broke into a home by breaking a window with a hammer, and then beat an occupant on the head causing multiple skull fractures and eventually death caused by blunt force trauma, that People "failed to prove that [defendant] acted with depraved indifference" insufficient to preserve argument that defendant "only" committed an intentional murder, but were comments made immediately after court denied motion to dismiss at the end of the People's case that "this case came down to an officer allegedly observing three people speaking on the street for a few minutes; then the defendant looking up and down the block. That hardly --" before the court cut defense counsel off, were sufficient to preserve argument that evidence that defendant acted as lookout for his co-defendants when they sold cocaine to an undercover officer was legally insufficient, but since "a rational fact finder could have inferred from the evidence that, based on the timing, defendant's conversation must have been about the drug sale, defendant's looking around was for the purpose of detecting law enforcement, and that, by leaving the scene with Perez, defendant shared Perez's intent to sell drugs" the evidence was sufficient. Enrique Rivera (DA's Appeal; Article 78) Kings County ADA Victor Barall Reversed, 12/2/08 Defendant could be re-tried for murder 2, after first trial ended when jury could not reach a verdict on that charge, having been instructed not to consider lesser included offenses unless it acquitted defendant of murder 2. Dwight Giles NY County ADA Frank Glaser Reversed, 12/2/08 In prosecution of defendant for attempted burglary of medical offices, and related offenses, trial court failed to instruct jury that evidence of two recent uncharged burglaries of nearby residences, admissible under Molineux, 168 New York 264 (1901), could be considered only as "possession of stolen property counts, but ... not...with respect to the attempted burglary and possession of burglar's tools counts. Donald Mills Jose Then Onondaga County ADA James P. Maxwell (Mills), NY County ADA Grace Vee (Then) Affirmed, 12/17/08 Defendants were not eligible for re-sentencing under the 2005 Drug Law Reform Act (DRLA) since Mills was scheduled for a parole hearing two years later and "in order to qualify for resentencing under the 2005 DLRA, class A-II felony drug offenders must not be eligible for parole within three years of their resentencing applications" and although Then would qualify on that basis that is only so because he violated parole and required to resume serving the sentence on which he had been paroled, "[A]n inmate must be more than three years from parole eligibility for the same class A-II drug felony for which resentencing is sought" and not one he is serving after violating parole. Alfred Ford (People's Appeal, in part) NY County Patrick J. Hynes Modified to reinstate robbery 1 conviction, 12/17/08 Evidence was legally sufficient to establish first-degree robbery under Penal law § 160.15(3) requiring use or threatened use of a dangerous instrument where victim testified that defendant said he had a knife but witness never saw knife and no knife was recovered even though court's instruction was inadequate "for the jury to be put on notice of its obligation to decide whether defendant actually possessed a knife" since that portion of the charge was not objected to and defendant's statement that "I got a knife," "while simultaneously moving his hand toward his pants pocket...provide legally sufficient evidence to establish that defendant 'used or threatened the immediate use.' " The two separate robbery transactions did not have to be severed for trial. Robert Buss Nassau County ADA Margaret E. Mainusch Affirmed, 12/16/08 In SORA risk assessment for 1983 crime, court consider victim impact statement from a 1987 crime and defendant was subject to upward departure based on victim's statement on 1983 case that the defendant brutally raped and sodomized her before stabbing her and slashing her throat since he was "still serving" his 1983 sentence when SORA became effective in 1996 Tebrue James NY County ADA Christopher P. Marinelli Affirmed, 12/18/08 Defendant was entitled to jury's consideration of robbery 3, as a lesser included offense of robbery 1,since "[t]he victim testified that defendant had a gun [and n]o other evidence, viewed reasonably, contradicted that testimony." Although accomplice, who testified for the People under a cooperation agreement "claimed not to have seen defendant with a gun from his vantage points –- across the street and upon nearing defendant -- even he acknowledged overhearing [co-defendant] Davis say to the victim that defendant had a gun." Isaac Diggins NY County ADA Gina Mignola Affirmed, 12/16/08 Defendant properly found to be a persistent violent felony offender without a hearing regarding the constitutionality of a prior conviction since CPL 460.15 (6) "contemplates that the court will proceed immediately from the preliminary examination to the hearing [on any issue controverted by the defendant] unless the defendant did not receive the statement at least two days beforehand" and he had.

SSMs Because of space limitations only, cases decided without argument are listed below: Brandon Allen New York County ADA Gary S. Snitow Affirmed, SSM, 1/10/08 Findings that officers properly acted under the common right law to inquire, and then based on reasonable cause had support in the record and were otherwise beyond Court's limited authority to review "a mixed question of law and fact" Hector Frazier Queens County ADA Karen Wigle Weiss Affirmed, SSM, 1/15/08 "Defendant was informed at the time of sentencing that his sentence would include a mandatory term of post-release supervision." John Malaussena Bronx County ADA Jacob Kaplan Affirmed, SSM, 6/12/08 "Even assuming that he was in custody once a detective observed blood on defendant's shoe, any violation of Miranda v Arizona (384 US 436 [1966]) did not infect his post-Miranda admissions. Defendant voluntarily appeared at the police station to speak to detectives, he did not incriminate himself prior to receiving Miranda warnings and there was only a brief exchange between the detectives and defendant once the interview arguably became a custodial interrogation. Moreover, although the initial post-Miranda interview was conducted by the same detectives and in the same room as the pre-Miranda discussions, defendant's decision to disclose the incriminatory information was not the function of a single continuous chain of events since questioning ceased for approximately four hours before he received Miranda warnings and confessed for the first time" Alvaro Cumberbatch New York County ADA Beth Fisch Cohen Reversed, SSM, 2/7/08 As in People v. Louree, 8 N.Y.3d 541 (2007), defendant, who was not advised that his sentence would include post release supervision is entitled to have his plea vacated, People v. Catu, 4 N.Y.3d 242 (2005) even though he did not object when the court sentenced him with the post release supervision included. Andrew Packer (People's Appeal) NY County ADA Eric Rosen Affirmed, SSM, 6/25/08 "[C]ourt's determination -- that defendant's consent [to search] was involuntarily given because it was insufficiently distinguishable from the illegal frisk -- finds record support" Luis Estrella Monroe County ADA Jessica Birkahn Housel Affirmed, SSM, 7/1/08 Evidence seized from motorist stopped because he believed windows were tinted more than permissible under VTL § 375 (12-a) (b) (3), did not have to be suppressed because auto was registered in Georgia where such tinting was legal. Menashe Shemesh (People's Appeal) NY County ADA Frank Glaser Affirmed, SSM, 9/16/08 No basis for reversal where there is record support for AD's conclusion that though defendant had served 190.50(5) notice that he wanted to testify before the grand jury "District Attorney failed to accord the defendant reasonable time to exercise his right to appear as a witness." Dermot MacShane Putnam County ADA Mary Jane MacCrae Affirmed, SSM, 11/24/08 "While the Appellate Term incorrectly proceeded to steps two and three of ... Batson inquiry for the first time on appeal, reversal is not required because defendant failed to meet his burden of establishing a prima facie case of discrimination under step one. Dionis Collado NY County ADA Paula-Rose Stark Modified, SSM, 12/18/08 Rejecting defendant's argument for suppression of evidence, Court remands for re-sentencing under Sparber 10 NY3d 457, 469-471 (2008), see above.

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