Author Archives: Larry Cunningham

SCI Plea Not Allowed When Initial, Top Charge is a Class A Felony

Superior Court Informations facilitate the resolution of criminal cases because they enable defendants to plead guilty before Grand Jury presentment. However, there is a key limitation. Under both the State Constitution and the CPL, a defendant may not waive his or her right to a Grand Jury indictment and plead guilty to a SCI if the top charge in the felony complaint is a Class A felony punishable by death or life imprisonment.

This was the issue in People v. Monforte (Ct. App. 9/5/2019), a case which was SSM’ed. The defendant was charged with Murder 2º, a Class A felony that carries a maximum penalty of life in prison. Nevertheless, the defendant waived indictment and pleaded guilty to an SCI. The Court of Appeals reversed and reinstated the felony complaint.

This jurisdictional issue survives a guilty plea, reduction to a lesser sentence (in this case, Manslaughter 1º), waiver of appeal, and a sentence within the bounds of the agreed-upon sentence range. Indeed, this claim can be raised for the first time in the Court of Appeals.

Short, But Helpful, Opinion on Serious Physical Injury

People v. Sipp (Ct. App. 8/29/2019) was a criminal case that was SSM’ed. It is a short, unsigned opinion that nevertheless adds to the body of law on the difference between physical injury and serious physical injury. The defendant was convicted of Assault 2º and, on appeal, argued that his request for a lesser-included instruction of Assault 3º should have been granted. The Court of Appeals disagreed, holding that the evidence supported nothing less than a finding of serious physical injury because:

the victim’s face was disfigured with scars above one eyebrow, under the other eye, on her lip and across her neck, and that apart from the scars, her facial structure and appearance had changed significantly. Testimony from her treating physician established that she suffered at least five displaced fractures around her eye sockets and nose, which were left to heal as displaced

(LC)

People Successfully Defend Police Contact Under Level One of DeBour; Court Suppresses Under Higher Level

People v. Hill (Ct. App. 5/2/2019) is an interesting case that highlights an important point about the DeBour four levels of police-citizen interaction.

This case involved a run-of-the-mill “clean halls” stop in NYCHA housing. The defendant was seen repeatedly entering and exiting a public housing building. The police stopped him and asked for his identification, which he provided. An officer took the ID to the apartment that the defendant was supposedly visiting; the occupant did not know the defendant. The defendant was arrested for trespass. During a search incident to lawful arrest, the police found 42 bags of crack cocaine.

The defendant argued that this was a Level 3 intrusion and required reasonable suspicion, which was lacking. The People argued that it was a Level 1 request for information, which required only an objective, credible reason.

The Court of Appeals agreed that, at the inception, the encounter was justified under Level 1 of DeBour. However:

the record demonstrates that the encounter thereafter rose beyond a level-one request for information, which the People failed to justify as lawful. Consequently, the People have failed to preserve any argument that the encounter in this case was justified under levels two or three of DeBour.

If I am reading the Court’s opinion correctly, the People failed to argue in the alternative before the motion court that, even if this was a Level 3 encounter, it was justified by reasonable suspicion. From a preservation point-of-view, both sides should always argue in the alternative in case a court concludes that a different DeBour level applies than the party originally asserts. (LC)

Who Was the First Initial Deadly Aggressor?

When it occurred, the killing of Vonde Cabbagestalk drew a great deal of media attention, since the shooter was an off-duty New York City corrections officer. At issue in the case on appeal was whether the defendant was entitled to a justification charge. The trial court said no; the three-judge majority of the Appellate Division said yes. The Court of Appeals agreed today with the trial court, finding that the evidence showed that the defendant was the first initial deadly aggressor and, thus, not entitled to a justification charge. The case is People v. Brown (Ct. App. 5/7/2019) (Wilson, J.) (7-0).

One of the things I appreciate about this case is how methodical Judge Wilson undertakes his justification analysis. Justification is a tricky topic because it involves a great deal of “back and forth,” examining the conduct of the shooter and the deceased.

In Brown, it was undisputed that the defendant shot and killed the victim in the lobby of the defendant’s building after an argument. There were several witnesses, but only one saw the shooting. He saw the victim swing at the defendant but apparently miss. The defendant was holding a gun. The victim then “swiped” at the gun and said, “[I]f you going to pull a gun out, you got to use it.” The defendant did just that. He was then convicted of Manslaughter 1º after the jury acquitted on Murder 2º.

Judge Wilson’s analysis proceeded in a logical manner:

  • This was the use of deadly physical force. Therefore, to be entitled to a jury instruction on justification, there must be a reasonable view of the evidence that the defendant was confronted with deadly physical force and must not be the first initial aggressor of that force.
  • A person can be the first initial aggressor as to physical force but another can be the initial aggressor as to the deadly physical force. That is what happened here.
  • “To determine who the ‘initial aggressor’ is, then, both the sequence of the attacks (or imminently threatened attacks) and the nature of those attacks matter: which attacks were ‘physical force’ and which attacks were ‘deadly physical force?'”
  • The victim was unarmed.
  • The victim “swiped” at the gun only after the defendant first produced the firearm.
  • The victim and others made clear that it seemed that the defendant was going to use the gun.
  • Because the defendant drew the gun first and was the initial deadly aggressor, he was not entitled to the justification defense unless he retreated or the victim was the initial deadly aggressor.
  • There was no withdrawal (or communication of it, etc.).
  • The “swipe” at the gun did not constitute use or threat of deadly physical force and, in any event, occurred after the defendant first pulled out the gun. This left the defendant as the first initial deadly force aggressor.

(LC)

Conviction Overturned Where Trial Court Negotiated a Cooperation Agreement with a Co-Defendant

In New York, unlike other states and the federal system, trial judges and defendants may bypass the People and enter into plea negotiations directly. This is not uncommon. However, in People v. Towns (Ct. App. 5/7/2019), the Court of Appeals held that the trial court “abandoned the role of a neutral arbiter and assumed the function of an interested party” when it entered into a cooperation agreement with a co-defendant, which required that individual to testify against Towns in exchange for a more favorable sentence. The Court’s decision was unanimous, although Judge Rivera would have gone a step further and held that the trial judge showed actual bias.

The case was a simple, straightforward robbery, in which the issue was the identity of the perpetrators. The co-defendant implicated the defendant. His plea agreement with the judge called for a possible punishment of between 9 and 15 years; the judge, however, promised a sentence on the low end of the range if the co-defendant cooperated in the defendant’s case. At the defendant’s trial, the prosecution elicited that the co-defendant had not entered into a cooperation agreement with the district attorney’s office. The judge instructed the jury that the agreement was between the co-defendant and the court.

The Appellate Division criticized the trial court but upheld the conviction, finding that the court’s conduct did not deprive the defendant of a fair trial.

The Court of Appeals disagreed, analogizing to cases where judges made caustic remarks, called its own witnesses at trial, aggressively cross-examined witnesses, or acted as an appellate court in its own case. The focus, for the Court of Appeals, was the lack of neutrality that the judge showed. The Court was particularly troubled by the trial court’s statements tying its understanding of truthful testimony with the co-defendant’s prior statement:

Indeed, whatever its subjective intentions, the trial court effectively procured a witness in support of the prosecution by inducing the codefendant to testify concerning statements the codefendant made to police—which identified defendant as one of the robbers—in exchange for the promise of a more lenient sentence. Significantly, by tying its assessment of the truthfulness of the codefendant’s testimony to that individual’s prior statements to police, the trial court essentially directed the codefendant on how the codefendant must testify in order to receive the benefit of the bargain.

The case was remitted for trial before a different judge. (LC)