Author Archives: Jamie Caponera

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)

“Dangerous Contraband”: What is it?

In People v. Flagg (4th Dept. 11/16/2018), the Fourth Department considered a defendant’s appeal despite the lack of preservation and expounded upon what constitutes “dangerous contraband” in a prison.

At the lower court, the defendant was convicted  by a jury of Promoting Prison Contraband 1° and CPCS 7°. These convictions arose after correction officers obtained a disposable glove containing four Tramadol pills from the defendant’s possession, while he was incarcerated at a local jail.

For the crime of Promoting Prison Contraband 1º, the People were required to prove that the defendant was (1) confined in a detention facility, and (2) knowingly and unlawfully made, obtained, or possessed any “dangerous contraband.” Dangerous contraband is defined by the Penal Law as “contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein.” The test that the Court of Appeals developed in People v. Finley to determine whether a substance is dangerous is “whether its particular characteristics are 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.”

On appeal, the defendant contended that there was legally insufficient evidence to establish that the Tramadol pills were “dangerous.” Although defense counsel moved for a dismissal, the Court noted that this was not enough to preserve the issue for review, but considered the defendant’s appeal in the interest of justice.

The People presented testimony from corrections officers that the pills were dangerous because inmates will fight over the drugs and inmates will also get high and try to fight the staff, or attack other inmates. Additionally, a Sheriff’s detective testified that if not prescribed to the person who was taking the pills, it could cause the person who ingested the pill’s death.

The Court found that this testimony was only discussing broad penological concerns and was speculative and conclusory. The evidence did not establish a substantial probability of a major threat to the facility, or death or serious injury. Specifically, the Court found that there was no specific evidence regarding the dosage of Tramadol or what it would do if ingested by an individual. Thus, the Court found that the People did not establish the “dangerousness” of the pills possessed by the defendant and therefore, the convicted should be reduced to Promoting Prison Contraband 2°.

Further, the Court noted that drugs in it of themselves are not inherently dangerous and the specific use and effects are necessary to show whether or not a drug is dangerous. The Court stated the determination of what types and quantities of drugs are considered dangerous is best left to the legislature. (JC)

Searching Cell Phones: Confirmation to get the Warrant

In People v. Hackett (4th Dept. 11/9/2018), the Fourth Department analyzed a cell phone search under the 2014 Supreme Court decision Riley v. California to find that officers may send a confirmatory text message to a defendant’s cell phone when they have been in undercover communication with him to ensure they have the proper defendant. This confirmatory text may then be used to support a valid search warrant of the defendant’s cell phone. Continue reading

The Importance of Jury Note Readings, as Shown by a Pro Se Defendant

In People v. Timmons (4th Dept. 10/5/18), the Fourth Department allowed for a reconstruction regarding whether the trial court did not provide adequate notice to defense counsel when it did not read out a jury note verbatim.

The defendant in this case was tried and convicted by a jury of Murder 2º.  He appealed to the Fourth Department, and it affirmed the conviction. However, the defendant filed a writ of error coram nobis, because he contended his appellate counsel failed to raise an issue on appeal that may have merit: a violation of CPL § 310.30 in regard to a note from the jury in its deliberations.

CPL 310.30 requires the jury to return to the courtroom after notice to both the People and counsel for the defendant and give instruction as the court deems proper. When there is a substantive note from the jury, the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury. This means actual, specific content of the jurors’ request must be disclosed. The Court of Appeals has held that a trial court’s failure to read a jury’s note verbatim deprives counsel of the opportunity to analyze accurately the jury’s deliberations and frame intelligent suggestions for the court’s response.

The defendant here contended that the trial court failed to read the note from the jury verbatim, and the transcript shows that instead in the reading both in front of and outside the presence of the jury, omitted to read the jury’s request to have a read back of the medical examiner’s testimony, and to have that testimony read first.

The People contended that it was the transcript that was in fact incorrect, and that the trial judge did read verbatim the jury note. They relied upon an affidavit from the court reporter that was submitted in response to the defendant’s writ. The affidavit stated that a stenographic error may have resulted in a transcript that did not accurately reflect whether the court read the entire content of the note verbatim in open court prior to responding to the jury.

The Fourth Department held that the alleged error in the transcript of the court’s on the record reading of the note was subject to a reconstruction hearing because the trial judge is the final arbiter of the record certified to the appellate courts. Therefore, the case was reversed and remitted to the County Court for the reconstruction hearing. (JC)