Category Archives: App. Div. 2d Dept.

Another reversal for equivocal answers by juror

The Second Department reversed the conviction in People v. MacFarlane (2d Dept. 8/23/2011), because the trial court sat a prospective juror who had given equivocal answers to a question about police credibility.  The Defendant was on trial for Murder 2º.  During voir dire, the juror reported that several family members were police officers.  "The prospective juror expressed on two occasions her concern that she may give the testimony of a police officer more credence than she would to other witnesses. When asked if she would give no greater credibility to the testimony of police officers, the prospective juror replied, 'I would like to think that I can be fair, but it's hard.' When asked if she could evaluate the testimony of police officers in the same way as any other witness, the prospective juror answered, 'I would hope so.' Further, in response to a query from defense counsel as to whether she could be fair and impartial, the prospective juror stated, 'I'd like to think of myself as a fair person, but I — it's — I — I do give police officers a little more credence, I think, than I would other people.'"

Based on the juror's responses, the Appellate Division found that the juror should have been excused for cause.  

Lesson learned?  While it is frustrating for both jurors and attorneys, the latter must ensure that the former give unequivocal answers to questions about bias.  Jurors who remain on the fence about such an issue must be excused.  (LC)

Lawyers as jurors

Conduct by a juror is improper if it may affect a substantial right of the defendant.

In People v Davis, (2d Dept. 5/24/2011) (Hall, J.), the defendant appealed his conviction of two counts of Murder 2°, six counts of Robbery 1°, three counts of Burglary 1°, and one count of Criminal Possession of a Weapon 2° for his participation in an apartment raid.  The trial jury included a juror who practiced as a real estate attorney.  After the jury convicted the defendant, several jurors wrote letters to the prosecutor, the court, and the defense attorney explaining that while they were deliberating the attorney-juror instructed the others about the law.  Based on the conduct of the attorney-juror, defendant raised a motion to set aside the verdict pursuant to CPL § 330.30(2).  The trial court denied the motion without a hearing.  It reasoned that inquiry into the activities raised by the letters would be impermissible due to the rule forbidding inquiry into the tenor or content of jury deliberations.

In affirming the conviction, the Second Department held that the trial court did not abuse its discretion when it denied the motion without conducting a hearing.  The Second Department explained that while inquiry into the tenor of jury deliberations is generally impermissible, inquiry into improper jury influence may be allowed on a case by case basis.  After referencing several Court of Appeals cases for the premise that improper influence is evident where the jury comes to possess factual evidence not introduced at trial, the Second Department found that the attorney-juror did not convey facts beyond those presented at trial.  This finding was supported by the record of jury notes requesting reinstruction on the law and readbacks of the defendant’s testimony.  Additionally the court noted that the statements allegedly made by the attorney-juror were accurate interpretations of the law, but that even if the statements were incorrect that they would not constitute improper conduct as set forth in CPL § 330.30. 

I have always been suspicious of having a lawyer on my juries for precisely the reason raised by this case.  I have usually exercised my preemptories to excuse potential lawyer-jurors.  I see several problems with lawyer-jurors: (1) they may, as in this case, advise the rest of the jurors on the law; (2) the other jurors may turn to the lawyer-juror for legal interpretation; and (3) the lawyer-juror's views may carry more weight because of his or her status.  Some may view these problems as actually benefits.  I see some merit to this conclusion, depending of course on the particular juror at hand.  Nevertheless, I am ultimately persuaded that having a lawyer-juror on the jury is too much of a wildcard.  (MM/LC)

Parole status not controlling for 2009 DLRA resentencing application

The Drug Law Reform Act of 2009 (2009 DLRA) allows for incarcerated felons who committed a class B felony prior to January 13, 2005 and who are serving an indeterminate sentence with a maximum of more than three years to apply for resentencing (CPL 440.46).  In People v. Phillips (2d Dept. 3/15/2011), the Appellate Division held that parole status was not controlling for a 2009 DLRA resentencing application. The Defendant's motion for resentencing had been denied by the County Court, holding that the Defendant was a reincarcerated parole violator and that made him ineligible for resentencing.

The Appellate Division reversed, holding that parole violations do not automatically bar DLRA 2009 relief. While the AD2 acknowledged that the Court of Appeals stated that the legislature did not want new crimes to trigger the opportunity for resentencing, the Court held that only applied to the Drug Law Reform Act of 2005 and not 2009 DLRA. The court held that relief under 2009 DLRA could not be denied on the basis that the defendant is reincarcerated as a parole violator. The denial of the defendant's motion was reversed and remanded for a new determination. 

This case now sets up a department split.  The First Department previously held that parole violators were not eligible for resentencing under the 2009 DLRA (People v. Pratts, 74 A.D.3d 536, 537, lv. granted, 15 N.Y.3d 895).  Leave was granted in that case.  It will be interseting to see how the Court of Appeals resolves the issue.  (JMM/LC)

Court must conduct a sufficient inquiry before enhancing a sentence for plea violation

The Second Department in People v. Zobe (2d Dept. 3/15/11), explained the procedure that must be followed before a defendant's sentence can be enhanced for violating a  condition of his plea agreement before sentencing.

The Defendant pleded guilty to Insurance Fraud 3º. As part of his plea agreement the Defendant stated he understood: (1) he must answer all questions asked by the Department of Probation truthfully and be consistent with the answers he gave during the plea colloquy; and (2) if the first condition is violated his sentence would be enhanced up to the maximum allowed.  The County Court, Westchester County, enhanced the Defendant's sentence after the Court found he violated his plea agreement when he was untruthful with the probation department.

After the Defendant was arrested for insurance fraud, he alleged the police beat him and handcuffed him to a chair.  Zobe later sued Yonkers Police Department. The Defendant made several statements to his probation officer about the alleged beating, including "all a false arrest." However, the Defendant never denied committing the insurance fraud. The County Court concluded the statements to his probation officer violated his plea agreement and enhanced his sentence. 

The Second Department reversed the County Court because the lower court failed to conduct a sufficient inquiry as to whether or not the Defendant violated a condition of his plea agreement. As part of that inquiry the Defendant should have been given an opportunity to present evidence that his later statements to his probation officer did not contradict the earlier statements he made in court.  (MK/LC)

Failure to advise of consequences of PRS violation

We all know that postrelease supervision (PRS) is a direct, not collateral, consequence of a conviction and, therefore, courts must advise a defendant that there will be a term of PRS before he or she pleads guilty.  But does that rule extend to advising a defendant that violating a PRS condition could lead to a prison sentence?  The Second Department recently said "no" in People v. Monk (2d Dept. 3/15/2011).  Prior to Monk, both the First and Third Departments had said that the consequences of violating a PRS term are collateral and need not be told to a pleading defendant.

The consequneces of violating a term of PRS are individual to the defendant and discretionary with the Parole Board.  Thus, the Second Department held, what happens after a PRS violation is collateral and does not affect the voluntariness of the plea.

This result makes sense, since the ramifications of violating the conditions of postrelease supervision are subject to the discretion of the Board of Parole, rendering them, by nature, merely collateral to pleas and sentences. Specifically, alleged violations of the conditions of postrelease supervision are heard and determined by the Board of Parole, and, upon determining that there is probable cause to believe that a defendant has violated such a condition, the Board of Parole must conduct a revocation hearing (see Penal Law § 70.45[4]; Executive Law § 259-i[3]). If the presiding officer at that hearing is satisfied, by a preponderance of the evidence, that the defendant has violated one or more conditions of postrelease supervision, the presiding officer then determines the remedy that is to be imposed upon the defendant (see Executive Law § 259-i[3][f][x]). The remedies that may be imposed are, as relevant here, a restoration of the defendant to supervision; or, as an alternative to reincarceration, the placement of the defendant in a parole transition facility for not more than 180 days with subsequent restoration to supervision; or directing the defendant's reincarceration for up to the balance of the remaining period of postrelease supervision, not to exceed five years (id.).

Thus, the consequences that arise from violating conditions of postrelease supervision are within the discretion of the Board of Parole, and are therefore collateral to the judgment of conviction. Accordingly, there is no requirement that a trial court must specifically advise a defendant of the consequences of violating conditions of postrelease supervision, in order for the defendant's guilty plea to be knowingly and voluntarily entered.