Appellate Review of a Joined Indictment with One Plea

In People v. Holz (4th Dept. 12/21/2018), the Fourth Department refused to review a suppression ruling of the lower court on a count in an indictment that did not have a final judgment, when the defendant had pleaded guilty to a related count in the same indictment.

At the trial level, the defendant was convicted of Burglary 2°. The indictment was for 2 different burglary incidents, on October 1, 2014 and October 3, 2014, and the defendant pleaded guilty to the October 1 incident, satisfying the both counts of the indictment. At the appellate level, the defendant was seeking suppression of jewelry recovered from a police stop that took place on October 3. The defendant did not plead guilty, nor was he convicted of the October 3 burglary.

The Court’s inability to do anything regarding the defendant’s contention is rooted in the limited nature of appellate jurisdiction. The majority cited a First Department case for the contention that “the judgment of conviction on appeal did not ensue from the denial of the motion to suppress, and the latter is, therefore, not reviewable” pursuant to CPL 710.70 (2). The issue the Court was faced with is not whether the lack of suppression is harmless, but whether the Court has jurisdiction to review the ruling at all.

The majority followed the precedents of its three sister departments in holding that a defendant may not plead guilty to one count of an indictment and then appeal the denial of a suppression motion of another count in which no judgement was rendered but was covered by the plea.

Presiding Justice Whalen dissented, because he found that the majority adopted too strict of an interpretation of CPL 710.70 (2). He noted that the defendants conviction did follow as a consequence or result of the suppression, and therefore, the majority ignored the plain meaning of the statutory language. (JC/LC)

Prosecutorial Misconduct: How Much Warrants Reversal

In People v. Fick (4th Dept. 12/21/2018), the Fourth Department found that a prosecutor’s cross-examination of a witness regarding inadmissible evidence constituted proper misconduct; however, the majority did not find that it was enough to constitute a reversal of the defendant’s convictions.

At the lower court, the defendant was convicted of Burglary 1°, Grand Larceny 4°, and Unlawful Imprisonment 1°. The defendant made several contentions on appeal that were rejected by the Court. The Court found that the evidence did support a conviction and the verdict was not against the weight of the evidence.

The defendant also contended that he was deprived of a fair trial by the prosecutor. However, during trial he did not object to any alleged instances of prosecutorial misconduct, so this contention was not preserved for appeal. The Court still looked into the merits of this claim; however, it found that on the whole it failed because all the comments made by the prosecutor were fair.

Nevertheless, the Court agreed with the defendant’s contention that the prosecutor exceeded the bounds of propriety by cross-examining a defense witness regarding an uncharged crime that the defendant allegedly committed and by placing his credibility at issue in doing so. The Court held that in this case, the prosecutor strayed outside the four corners of evidence and the jury should be deciding a case solely on the evidence.

Despite this finding by the Court, it held that reversal was not warranted. This is because the Court found that the error had not substantially prejudiced the defendant’s trial. The dissenting judges pointed out that this very prosecutor had been admonished before on appeal. However, the admonishment had occurred after the trial in this case. The Court noted that although it strongly condemned the prosecutor’s conduct, it did not find it warranted reversal.

The defendant also contended that he was denied effective assistance of counsel due to the lack of objection to these prosecutorial errors. The Court rejected his claim.

The dissenting judges agreed with the majority that the defendant’s contention was valid, but they opined that the prosecutor did cause substantial prejudice to the defendant. Further, they stated that the prosecutor’s remarks during summation were inflammatory and prejudicial to the defendant. For these reasons, the dissenters wrote that they could conclude that absent such misconduct, the same result would have been reached. (JC/LC)

Criminal Contempt Conviction Upheld Even Without Order of Protection in Evidence

In People v. Simpson (App. Term 2d Dept. 11/29/2018), the defendant was charged with Stalking 4° for incidents that had occurred in 2011 and 2012 involving the girlfriend (the victim) of defendant’s husband. Defendant was also charged with Criminal Contempt 2° based on an incident that had occurred in October 2013, in which defendant had allegedly violated an order of protection in favor of the victim and against the defendant. After a jury trial, the defendant was convicted of Criminal Contempt 2°. The Appellate Term, Second Department, affirmed the defendant’s conviction, but the decision drew a dissent from Justice Brands.

At trial, the victim testified that in October 2013, she had been sitting in her car on the phone when the defendant approached her vehicle and asked the victim questions regarding her relationship with the defendant’s husband. The defendant then allegedly threatened the victim, telling her that “she would pay.” The victim filed a report with the police shortly after. After the People rested their case-in-chief, defense counsel unsuccessfully moved for a trial order of dismissal on the Stalking charge but also stated on the record that they could not in good-faith move to dismiss the Criminal Contempt 2º charge. Prior to summations, both parties stipulated that there was a valid order of protection in favor of the victim against the defendant at the time of the alleged incident. But a copy of the order of protection was not produced. Defendant was acquitted of the Stalking charge but convicted of Criminal Contempt 2°.

On appeal, Defendant contended that the People did not prove her guilty beyond a reasonable doubt of Criminal Contempt 2º because they failed to introduce into evidence the order of protection, and there was otherwise no proof of the conduct that it prohibited. The Court declined to review this, stating that Defendant’s claim was unpreserved when she failed to move to dismiss the charge at trial. Defendant also claimed on appeal the denial of effective assistance of counsel. Here, the Court held that the defendant was not denied effective assistance of counsel because defense counsel had extensively cross-examined the victim and brought out credibility issues that the jury took into account as well as getting an acquittal on the stalking charge.

Justice Brands would have reversed the conviction and ordered a new trial. As to the defendant’s first claim, Justice Brands agreed with the defendant’s contention that the People’s evidence was insufficient for a conviction on the criminal contempt charge. Even though it was stipulated into the record that there was a valid order of protection in place, the actual contents of the order of protection, namely delineating the type of order of protection and the conduct the defendant must refrain from doing, were not entered into the record. Without the contents of the order of protection, Justice Brands reasoned that there was no proof Defendant violated any of its terms. Because defense counsel did not move to dismiss the Criminal Contempt charge in the absence of an order of protection in evidence, Justice Brands stated that this alone would be enough to grant Defendant relief for ineffective assistance of counsel. Justice Brands stated that this case represents a “rare occasion” in which a single misstep by defense counsel can rise to the level of ineffective assistance. (MK/LC)

Fatal Car Crash Does Not Rise to the Level of Criminal Negligence

The defendant in People v. Smith (App. Term 1st Dept. 12/7/2018), the was convicted after a bench trial of Reckless Driving, Failure to Exercise Due Care to Avoid Collision with a Pedestrian, and Failure to Yield to a Pedestrian. The Appellate Term, First Department, reversed the defendant’s convictions holding that the defendant’s actions did not rise to the level of criminal negligence and the convictions were against the weight of the evidence.

The defendant’s convictions stemmed from a motor vehicle accident where she was the driver. The defendant was driving and as she began to make a left turn, her vehicle was hit by a FedEx truck. The impact of the collision caused her to lose control of her vehicle and, in an attempt to avoid hitting a pedestrian, defendant drove the vehicle onto a sidewalk, where it scraped a building before striking and killing a pedestrian. Testimony at trial showed that prior to striking the pedestrian, when the defendant tried to step on the brakes, her vehicle would not stop. At the conclusion of trial, and at the defendant’s request, the Criminal Court utilized the criminal negligence mens rea with respect to the charged offenses Failure to Exercise Due Care and Failure to Yield. The defendant was convicted of all charges.

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he or she fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Penal Law § 15.05(4). The criminal negligence standard is more serious than that required in a civil suit. The criminal standard requires a defendant to have engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of a proscribed result; nonperception of a risk, even if the proscribed result occurs, is not enough.

Here, the People failed to prove beyond a reasonable doubt that the defendant’s actions were criminal. The court noted that although the facts of the case would be enough to sustain a suit under the civil negligence standard, none of the evidence pointed to any criminal wrongdoing. The defendant was not speeding, driving recklessly, or operating in an intoxicated state. She used her turn signal and looked for pedestrians. Although the harm caused was fatal, it was not the result of morally blameworthy conduct on the defendant’s part. (MK/LC)

Wrong Advice and Lack of Support By Defense Counsel Leads to Ineffective Assistance of Counsel

In People v. Griffith (4th Dept. 11/9/2018), the Fourth Department found that the defendant had been denied effective assistance of counsel when his attorney refused to assist him in appealing his denied petition for a downward modification under the Sex Offender Registration Act (SORA). The defendant claimed in his petition that he was entitled to a downward modification of his previously-imposed classification as a level three risk pursuant to Correction Law §168-o(2). The court initially found that the defendant’s claim on appeal arises under CPLR 5701 not under Correction Law §168-o(2).

When the defendant moved forward with his petition, his assigned counsel wrote a letter to the court indicating that the petition was meritless and that he would not support the petition. Additionally, he advised the defendant to withdraw the petition so that defendant would not delay his right to file a new modification petition in two years. But the defendant’s counsel was wrong. Under Correction Law §168-o(2) a defendant may file a petition “no more than once annually.”

The Court concluded that by refusing to support the defendant’s petition and giving him incorrect advice, there was ineffective assistance of counsel because the defendant’s attorney essentially became a witness against the defendant and took a position adverse to him. (MK/LC)