Intent to Cause Serious Physical Injury Does Not Preclude Finding of Depraved Indifference

In People v. Wilson (Ct. App. 6/14/2018) (Garcia, J.), the Court of Appeals held that evidence of the defendant’s sustained assaults against his girlfriend over a period of two months, resulting in broken bones, brain injury, and permanent cognitive impairment, was sufficient to support a conviction for depraved indifference assault (Penal Law § 120.10[3]).

The defendant moved in with the victim in January 2011 shortly after meeting her and shortly thereafter began subjecting her to regular, severe physical violence. In August 2011, she suffered a burst blood clot on her ear and visited the hospital, where the doctor noted signs of previous trauma, including bruises that had healed abnormally. In September 2011, the defendant spoke with the victim’s mother and told her the victim was “acting possessed” and “banging her head against the wall.” The victim’s mother cleverly suggested her daughter receive a spiritual blessing with the aim of using the ceremony as a way to check on her daughter. Defendant also spoke with a friend around this time who heard moaning in the background over the phone and told defendant to take the victim to the hospital. Continue reading

Gravity knife law upheld by CA2 against facial challenge

In Copeland v. Vance (2d Cir. 6/22/2018) (Katzmann, C.J.) (3-0), a unanimous panel of the Second Circuit upheld New York’s ban on gravity knives—and the “wrist flick” test to determine whether a knife falls under the statute—against a facial challenge.

Plaintiffs claimed that New York’s gravity knife statute, Penal Law §§ 265.01(1) and 265.00(5), was void for vagueness because “ordinary people cannot reliably identify legal knives.”  The statute defines a gravity knife as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.”

Initially, the court had to decide whether the plaintiffs had brought an “as-applied” or “facial” challenge, since that would determine the test to be applied. Continue reading

Sufficiently Related Crimes and Triggering the Indelible Right to Counsel

Under New York law, a defendant who is represented by counsel on a criminal matter may, under certain circumstances, be questioned by law enforcement about a different, unrepresented crime without violating a defendant’s right to counsel. In People v. Henry (Ct. App. 6/12/2018) (Wilson, J.) (7-0), the Court of Appeals, reversing the Appellate Division, held that police did not violate Mr. Henry’s right to counsel when they interrogated him about a murder charge for which he was not represented by counsel. (Full disclosure: counsel for the appellant in this case is an adjunct professor at St. John’s Law in our advocacy program.)

The case stemmed from a robbery at a tattoo parlor and a shooting at a gas station of a 19-year-old man in which the same getaway vehicle, a black Hyundai Sonata with dark tinted windows, was used at the scene of the crimes. Five days later, Mr. Henry, driving a black Hyundai Sonata with dark tinted windows, was pulled over for traffic infractions and arrested for marijuana possession. Mr. Henry was assigned counsel on the marijuana charges. Upon an inventory search of Mr. Henry’s vehicle, police found evidence in his car linking him to the robbery of the tattoo parlor. Three days after his release, Mr. Henry was again pulled over for traffic infractions, but this time was arrested and brought in for interrogation in connection to the robbery and murder. Mr. Henry was read his Miranda rights, which he waived, and subsequently admitted to being the driver of the vehicle involved in the robbery and murder. A grand jury returned an indictment charging Mr. Henry with multiple counts of Robbery 1º, CPW 2º, Criminal Possession of Stolen Property 5º, Murder 2º, and Criminal Possession of Marijuana 5º. Continue reading

Refusal to permit summations results in overturned verdict

In a bench trial, the court may not prohibit summations if the judgment will result in jail time.  Doing so is a violation of the Sixth Amendment’s right to counsel.  In People v. Harris (Ct. App. 6/26/2018) (7-0), the defendant was tried for a Class B misdemeanor with the court as trier of fact.  However, the judge announced at the close of the evidence that it would exercise its “prerogative” not to hear summations.  The court immediately rendered a verdict finding the defendant guilty of the charge and sentencing him to 90 days in jail.

First, the Court of Appeals held that the claim was reviewable on appeal even though no objection was taken to the court’s ruling.  The manner in which the trial judge proceeded “deprived defense counsel of a practical ability to timely and meaningfully object to the court’s ruling of law.”  Thus, the Appellate Term erred in holding that the claim was unpreserved.

On the merits, the Court held that the failure to permit summations deprived the defendant of his Sixth Amendment right to counsel, since his attorney was not able to be heard.  New York’s former CPL § 320.20(3)(c), which gave trial courts the discretion not hear summations on nonjury indictments, was ruled unconstitutional in Herring v. New York, 422 U.S. 853 (1975).

The Court’s ruling in Harris came with two important caveats:

Our analysis is limited to the facts in this case and we do not address the constitutionality of the statute as applied to other nonjury trials that may not involve a deprivation of liberty. Similarly, defendant never argued that the denial of an opportunity to deliver summations violated his statutory right to counsel (see CPL 170.10).

Overall, Harris is a straightforward case with clear implications for future cases. (LC)

Excited Utterances: Pinned at the Scene of the Crime

The law of the case doctrine and the excited utterance exception to the hearsay rule are two very fact-specific determinations. The law of the case doctrine is not meant to be a limitation on judicial discretion or power; however, judges should not completely disregard prior decisions made within a single case. Similarly, the foundation and basis of the excited utterance exception is crucial in determining whether it should be applied to the statements of a specific case at hand. Recently, in People v. Cummings (Ct. App. 5/8/18) (Wilson, J.) (6-1-0), the Court found that a lower court erroneously admitted such statements, leading to the conviction of the defendant, Cummings. There, the out-of-court statements were extracted from the background of a 911 call, made by an unidentified person. Continue reading