Broken nose, three chipped teeth do not constitute serious physical injury

In People v. Rosado (1st Dept. 10/4/2011), the issue for the court was whether the People proved the existence of a serious physical injury.  After he sustained the injuries, the victim underwent surgery on his nose.  The surgery was successful and, apart from a slight indendentation in the nose, he did not suffer any lasting effects.  The indentation did not qualify as a serious disfigurement because a "reasonable observer" would not find the "altered appearance distressing or objectionable."  In addition, the victim's three chipped teeth did not rise to the level of serious injury.  Accordingly, the Defendant's conviction was reduced to Assault 3º, a misdemeanor.  (LC)

AD1 affirms trial court order setting aside verdict

In People v. Rios (1st Dept. 9/22/2011), the previous manager of a building as well as the corporate owner, were found guilty of Criminally Negligent Homicide and Reckless Endangerment 2º.   The victims in the case were two firefighters who were killed while trying to extinguish the flames.  Two of the apartments had unsafe conditions.  The first had faulty wiring.  The second had an illegal partition.  The fire started in the first apartment and then spread.  The People's theory was that the conditions in the second apartment were the cause of the firefighters' deaths and that the manager had actual knowledge of them.

Following the conviction, the trial court set aside the verdict under CPL § 330.30, finding insufficient evidence of knowledge.  The First Department agreed with the decision.  "The inferences upon which the People rely are impermissibly speculative. Furthermore, the People called the building's superintendent, who testified that he knew about the partition in 4-L but never told Rios about it. Even if the jury discredited that testimony, such disbelief would not supply affirmative proof of the contrary proposition."  (LC)

Reversal for right to public trial violation

In a very brief opinion, the First Department reversed the conviction in People v. Gray (1st Dept. 8/18/2011) because the trial court ordered the complete closure of the courtroom during the undercover's testimony.  The Defendant requested that certain family members be allowed to stay, but the court summarily rejected the request without comment.  Of particular concern to the First Department was that "the record does not otherwise show that the court considered whether there existed any reasonable accommodations that would have protected the public nature of the criminal proceedings."  The court reiterated that "trial courts are required to consider alternatives to closure even when they are not offered by the parties."  

The lesson for trial courts and for prosecutors is to make a proper record that explicitly considers alternatives to complete closure.  (LC)

AD1 orders new suppression hearing because counsel not present during part of hearing

In People v. Strothers (1st Dept. 8/11/2011) (4-1), the Defendant was the driver of a car with two passengers.  The DEA had identified the passengers through a wiretap investigation as high level drug dealers.  The threesome was arrested in the Bronx.  Defendant moved to suppress, arguing that there was a lack of probable cause to arrest him.  The suppression court conducted a joint hearing on the Defendant and the co-defendants' motions to suppress.  For some portion of the first witness' testimony, however, Defendant's attorney was not present in the courtroom.  Apparently he was covering another appearance.

The First Department found a violation of the right to counsel and ordered a new suppression hearing.  It rejected the People's arguments as to preservation (not required), harmless error (it was not), and that the unrepresented testimony did not pertain to the Defendant, only his co-defendants (not true, said the majority—the unrepresented testimony related to whether the police employed proper procedures).

Justice Catterson dissented, relying principally on what he saw as the strength of the People's evidence.  (LC)

Automobile except extends to exterior of vehicle

In a novel case, the First Department held that the automobile exception, which permits a warrantless search of a vehicle based on probable cause, extends to the exterior of the vehicle.  In People v. Howard (1st Dept. 2/1/2011), the police witnessed a suspected drug deal.  The Defendant, the driver of the vehicle, reached under the car and handed a small object to a buyer in exchange for cash.  The police stopped the vehicle and found drugs attached to the bottom of the car by magnets.  The court held, "We see no logical reason to give a closed container attached to the outside of a car any greater protection, especially where it is located in an area directly associated with the observed activity giving rise to probable cause."

The court nevertheless reversed because the trial court improperly rejected a challenge for cause to a juror.  (LC)