Author Archives: Mostafa Khairy

Sufficiently Pleading an Unauthorized Use of a Vehicle Charge

For a misdemeanor complaint to be facially sufficient, the accusatory instrument must provide facts that would establish each element of the crimes being charged. In People v. Bajas (App. Term 2d Dept. 8/31/2018), the Court affirmed the defendant’s conviction,  holding that the allegations in the accusatory instrument sufficiently alleged facts that established the “control or use of [a] vehicle” element of Penal Law § 165.05(1). The case drew a dissent from Judge Weston.

The defendant was arrested after an officer observed the defendant, at 4:24 AM, pull the handle of a 2006 Ford Suburban, enter the vehicle, and rummage through the glove compartment and center console of the Ford Suburban. The defendant was arrested and charged with Unauthorized Use of a Vehicle in the 3°, Attempted Petit Larceny, and Resisting Arrest. During his second court appearance, the defendant pleaded guilty to Unauthorized Use of a Vehicle in the 3° with the understanding that if he successfully completed a drug treatment program, the case would be dismissed. If he was unsuccessful in treatment, the defendant would be sentenced to one year of incarceration to run concurrently with a sentence on a prior, unrelated, felony charge. The defendant did not complete the drug treatment program and was sentenced to imprisonment.

On appeal, defendant contends that his conviction should be reversed because the factual part of the accusatory instrument, which merely alleged that he had entered a vehicle and rummaged through the glove compartment and the center console, did not satisfy the reasonable cause requirement for a misdemeanor complaint charging Unauthorized Use of a Vehicle in the Third degree. A person is guilty of Unauthorized Use of a Vehicle in the 3° when:

[k]nowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent.

The broad language of the statute has been interpreted to apply to a person who “enters an automobile without permission and takes actions that interfere with or are detrimental to the owner’s possession or use of the vehicle.” Entry into a vehicle alone is not enough; there must be some degree of control or use. The court relied on this reasoning for holding that the defendant’s rummaging through the car and center console satisfied the statute.

Judge Weston, on the other hand, would have reversed the judgment, vacated the guilty plea, and dismissed the accusatory instrument. In her dissent, Judge Weston pointed to the majority’s reliance on the Court of Appeals decision in People v. Franov. Franov dealt with an entry into a vehicle where the defendant vandalized and then removed certain automotive parts from the dashboard. Judge Weston believed that merely rummaging through a vehicle does not constitute vandalism, and since there was no allegation in the accusatory instrument of any further action on the part of defendant, in addition to the entry, the statute was not satisfied. Instead, Judge Weston would have the Court follow the same rationale as a similar previously decided case, People v. Gavrilov. This case held that the defendant’s entry into a vehicle and stealing a wallet from inside was not enough to constitute “use or control” of the vehicle for the purposes of the statute. Here, there was not even property taken (MK/LC.

Speedy Proceedings Leading to Involuntary Plea Deals?

It is well established that trial courts have the responsibility of ensuring that a defendant who pleads guilty is doing so knowingly, voluntarily, and making an intelligent choice among alternative courses of action. However, this does not require courts, at the time of the defendant’s guilty plea, to ask defendants an established set of questions to ensure that the guilty plea is entered into knowingly and voluntarily. In People v. Cappiello (App. Term 2d Dept. 2018) the Appellate Term, Second Department, upheld the defendant’s guilty plea as having been entered into knowingly, voluntarily, and intelligently and that the defendant understood the consequences of her plea.

During the defendant’s arraignment, the prosecutor made the court aware that there was a plea agreement in place in which the defendant would plead guilty to one count of Petit Larceny (Penal Law § 155.25) and would serve a 20 day sentence. In response, defense counsel stated that he had spoken with the defendant, and after advising her of her rights and the offer from the D.A., she had advised him to enter a plea of guilty with the understanding that she would only serve 20 days in jail. Defense counsel then waived a formal allocution.

This case drew a dissent from Judge Weston in which he voted to reverse the judgment of conviction, vacate the defendant’s guilty plea, and dismiss the accusatory instrument in the interest of justice. Quoting the arraignment transcript, Judge Weston took issue with the lack of dialogue between the court and the defendant when she was entering her guilty plea. Unlike other cases where a judge may ask the defendant a series of questions regarding the guilty plea, here, the defendant had no interaction with the court. As Judge Weston pointed out, the only proof that defendant waived her rights was her counsel’s general statement that he had “advis[ed] her of her rights,” which was not made in response to any court inquiry. This lack of on the record evidence calls into question whether or not the defendant truly knew the consequences of her guilty plea.

While Judge Weston understood the policy behind judges needing to keep arraignments moving quickly in the interest of judicial economy, he stated that a court still has the responsibility to ensure that a defendant enters a voluntary and knowing guilty plea.  (MK/LC)

Mode of Proeedings Errors and Jury Notes

In 1991, the Court of Appeals in People v. O’Rama articulated the proper procedure a court should go through when there is a note from the jury during the course of a trial: Upon receiving a jury note, a trial court should (1) mark the note as a court exhibit and read it into the record before the jury is called in (thereby ensuring adequate appellate review); (2) afford counsel an opportunity to suggest responses to the note; (3) inform counsel of the substance of the court’s proposed response (thereby giving counsel an opportunity to suggest appropriate modifications before the jury is returned to the courtroom); and (4) read the note aloud in open court before the jury so that any inaccuracies may be corrected by the individual jurors.

In People v. Morrison (Ct. App. 6/28/2018), the Court of Appeals, in an unsigned memorandum affirming the order of the Appellate Division, held that the trial court’s failure to provide counsel with meaningful notice of a substantive jury note was a mode of proceedings error that required reversal. This decision by the Court drew dissents from Chief Judge DiFiore as well as Judge Garcia.

The case stemmed from the rape of a 90-year-old Alzheimer’s patient in her nursing home. 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

Source Code and Unlawful Use of Secret Scientific Material

In 1967, the drafters of the New York Penal Law sought to ensure that a defendant who makes a copy of secret scientific material, but does not take the original, would still be subject to criminal sanctions even though the defendant has not technically committed larceny. In the digital age where nearly everything is electronically stored, this poses new issues for courts to grapple with. In People v. Aleynikov (Ct. App. 5/3/2018) (Fahey, J.) (7-0), the Court of Appeals, affirming the Appellate Division’s order, held that the defendant made a “tangible reproduction or representation” of source code when he uploaded the code to the hard drive of a German server and subsequently to his personal computer.

Defendant Aleynikov was a former Goldman Sachs’ employee who left the firm to work at a new startup company, Teza Technologies. The defendant, tasked with developing Teza’s high-frequency trading infrastructure and software from scratch, decided to download Goldman’s infrastructure codes to use them at Teza. After the breach was found, the defendant was arrested by FBI Agents and after waiving his Miranda rights, admitted to downloading Goldman’s source code to an unblocked German website where the defendant then downloaded the codes to his personal laptop. Continue reading