Category Archives: App. Div. 4th Dept.

When Deliberating Jurors Ask a Question, Answer It

When a jury asks clarifying questions of the court when deliberating, the court must meaningfully answer the question, without prejudicing the defendant. In People v. Wood (4th Dept. 7/25/2018), the Fourth Department held that a supplemental instruction provided by the court in response to a jury question constituted an abuse of discretion.

The defendant in this case was convicted by a jury verdict of two counts of CPW 2º and one count of Menacing 2º.  (The first count of CPW 2º charged possession outside the home of a loaded firearm.  The second count of the same crime charged possession with intent to use it against another.)

This case arose from a breakfast at a restaurant, which the defendant deemed cost too much and complained. Weeks later, he returned to the restaurant with a loaded gun, pointing it at employees and demanding sexual favors in exchange for the cost of breakfast. He was asked to leave and did so, and was then apprehended nearby by police. At trial, the defendant testified that the gun was a war antique of his grandfather’s and he was transporting it to another individual, keeping it on his person so that it was not stolen. The defendant claimed that he entered the restaurant to make amends with the complainant after his initial outburst. In his version of events, she insulted him, so he insulted her back and left, never displaying the weapon.

During juror deliberations, the jury sent a note requesting clarification on the terms “intent” and “unlawfully.” Continue reading

The Importance of Juror Conduct: How Not Following Instructions Can Impact A Post-Trial Verdict

When jurors communicate with third parties about the case in which they are hearing, it can adversely impact the trial by prejudicing the defendant. In People v. Neulander (4th Dept. 6/29/2018), one juror’s misconduct impacted the defendant’s rights and resulted in a new trial.

The defendant in this case was convicted by a jury of Murder 2º of his wife and Tampering with Physical Evidence.

The defendant contended that his conviction should be set aside on grounds of juror misconduct. Under CPL 330.30(2), the verdict may be set aside for juror misconduct if the misconduct may have affected a substantial right of the defendant, and it was not known to the defendant prior to the verdict. The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.

The defendant established during his CPL 330.30(2) hearing that a juror engaged in text messaging with third parties about the trial, including receiving a text from her father saying: Continue reading

Missing Witness Testimony: Expanding the “Noncumulative” Rule to All Four Departments

It is well-established in New York that a party may request and receive a “missing witness” jury instruction—i.e., that the jury may draw an unfavorable inference if the opposing party fails to call a witness who presumably has evidence that would aid that opposing party. People v. Smith (4th Dept. 6/29/2018) brought harmony to the Appellate Division by bringing the Fourth Department’s standard for a missing witness charge into conforming with the other three Departments.

In this case, the defendant was convicted by a jury at the lower court of Attempted Murder 2º, Assault 1º, and Criminal Use of a Firearm 1º. The defendant claims that his trial attorney rendered ineffective assistance of counsel, which the Court dismissed quickly, as the court determined defense counsel used a legitimate trial strategy.

What was at issue in this case is the contention by the defendant that Supreme Court erred in denying his request for a missing witness charge. In the First, Second, and Third Departments it is well-settled that the proponent of such a charge has the initial burden of proving that the missing witness has noncumulative testimony to offer on behalf of the opposing party.

In this case, the Court joined its sister departments and held that “when seeking a missing witness instruction, the movant has the initial, prima facie burden of showing that the testimony of the uncalled witness would not be cumulative of the testimony already given. In other words, it is the movant’s burden to establish, prima facie, that the missing witness’s testimony would not be ‘consistent with the other witnesses.'” (quoting People v Rivera, 249 AD2d 141, 142 (1st Dep’t 1998)).

In this case, the defendant failed to meet his burden. He does not argue otherwise, but simply contended that the burden was not his. The court rejected this approach in its adoption of the law, and therefore, the defendant’s conviction was affirmed.

Two Justices dissented, reading the Court of Appeals decision in People v. Gonzalez differently. They stated that the burden begins with the party seeking the charge to show entitlement, then shifts to the opposing party to demonstrate the charge would not be appropriate. In their view, it is only then that the issue of whether the testimony is cumulative would arise. (JC)

Evidence flowing from an illegal arrest suppressed at trial


In People v. Williams (4th Dept. 12/30/2010), the defendant appealed two separate convictions: the first was for Criminal Possession of a Weapon 3° and the second was for Burglary 2°. The court agreed with the defendant’s argument that money taken from the defendant’s pocket by a police officer should have been suppressed as “fruit of an unlawful arrest.” 

The Defendant was suspected of various residential burglaries occurring at night. As a result, police obtained a warrant authorizing GPS tracking of the defendant’s car. At 3:00 am on the night of the burglary, the vehicle left the Defendant’s residence, traveled east on I-490, and parked in a neighborhood near the disputed burglary. Approximately one hour later, the vehicle traveled west on the same highway, where it was stopped by police for speeding.  The police officers had reports of “possibly suspicious behavior.” They stopped the car, requested the driver's license and registration, and asked him to exit his vehicle. 

At this point, no probable cause existed to arrest him on Burglary charges. However, there was sufficient reason to stop him, ask him for his license and registration, and order him out of the car, since he was speeding.  Nevertheless, the police went further and engaged in an “intrusion amounting to arrest” requiring probable cause. Specifically, the defendant was frisked, handcuffed, and put into a police car. During the frisk, an officer felt a bulge in the defendant’s pocket that felt like paper. The bulge turned out to be cash, which matched both in amount and denomination with what had recently been stolen. Further, the Defendant lied about his destination: he said he was on his way to Binghamton, but needed to return home for money. At this point, the burglary had been confirmed. The officer testified that the defendant was detained for about 15-20 minutes. 

The majority held that the officers also should not have detained the defendant while other officers attempted to ascertain whether the burglary had been committed without evidence establishing probable cause. Thus, this arrest was illegal. Further, the money taken from his pocket was suppressed because it “flowed directly from the illegal arrest.”  The court went on to hold that the erroneous admission of the unconstitutionally seized evidence (the money) was not harmless error.  The money was the only evidence connecting the Defendant to the burglary. Since this conviction was reversed, the first appeal was also reversed, since it was induced by a promise of a concurrent sentence. 

Justices Scudder and Martoche dissented and argued that the money seized was not the product of an unlawful arrest. Specifically, that these facts fit the principle that if investigating possible criminal activity is going to be served, the police must be able to detain an individual for longer than a brief time period. 

Justice Scudder emphasized that when the police officers knew the defendant was lying about his destination, the matter escalated from reasonable suspicion to probable cause to believe this defendant committed the burglary and justified his arrest. 

Justice Martoche dissented further and argued that the error was not harmless beyond a reasonable doubt because the jury was presented with significant circumstantial evidence of the defendant’s guilt:

defendant drove to the neighborhood where the burglary was committed and circled around and parked for approximately 25 to 30 minutes near the home that was burglarized; items from a purse were found strewn in the vicinity where defendant parked, within minutes after defendant left the area; the purse and items found were missing from a home in the neighborhood where the burglary occurred; partial tread marks on the kitchen floor at the burglarized home matched the sneakers that defendant was wearing when he was apprehended, and did not match shoes owned by the owners of the burglarized home; canine tracking behind and up to the back of the homes in the neighborhood eventually stopped at the burglarized home; and defendant made inconsistent statements to the police when discussing his activities that evening and his behavior was of a suspicious nature. 



Running from warrant location may produce reasonable suspicion

Reasonable suspicion may arise when a suspect flees the location where a warrant is being executed.

In People v. Gray (4th Dept. 10/1/2010), as the police were executing a valid search warrant on the defendant’s residence, the defendant ran through the residence, climbed a fence, and attempted to flee the area.  The police apprehended the defendant.  Subsequently, the police recovered tangible property from the defendant’s residence, from the defendant’s person, and obtained statements from the defendant.  The motion court suppressed the statements and tangible property on the ground that the police lacked reasonable suspicion to pursue the defendant.

The People appealed, and the Fourth Department unanimously reversed, holding that the trial court erred in finding reasonable suspicion.  The court reasoned that the threshold for reasonable suspicion was satisfied by citing People v. Sierra, 83 N.Y.2d 928 (1994), for the precedent that flight in response to approaching police, combined with other circumstances indicative of criminal activity, may be sufficient to give rise to reasonable suspicion.  The court indicated that the evidence obtained subsequent to the valid pursuit, arrest, and warrant were erroneously suppressed.  (MM/LC)