Category Archives: App. Term 1st Dept.

AT1 reverses 440 grant

In People v. Simon (App. Term 1st Dept. Aug. 31, 2011), the trial court granted (without a hearing) the Defendant's 440 motion, alleging ineffective assistance of counsel.  The Appellate Term found this was error.  

The Defendant alleged that he would not have pleaded guilty had his previous attorney not erroneously advised him to do so.  The Defendant included his own affidavit and an affirmation from his current attorney.  However, he did not obtain an affirmation from his previous attorney.  Since the People did not concede the facts giving rising to the 440 claim, it was error to grant the 440 motion without a hearing.  (LC)   

AT1 justices differ on credibility of officer

In People v. Creer (1st App. Term 12/30/2010), Justices of the Appellate Term, First Department, reached different conclusions regarding the credibility of a police officer in a DWI suppression case.  The majority reversed the motion court's decision to grant the Defendant's motion to suppress.  The appellate court found probable cause based on the Defendant's "class signs of intoxication," including bloodshot, watery eyes; alcohol on his breath; and unsteadiness.  The court noted:

while the suppression court found that the officer's testimony was "at times" not credible, the court made no specific finding that the officer's testimony regarding his observations of defendant (or defendant's pre-arrest admission) was not credible. 

Justice Schoenfeld, in dissent, analyzed the officer's testimony in depth to show inconsistencies.  "The self-contradictory and confusing testimony of the arresting officer entitled the trial judge to find that there was no probable cause for [the] arrest."  The dissent also makes a reference to the officer's possible testilying—using the "'magic' words to establish probable cause."  In sum, the dissent concludes:

The trial judge assessed the credibility of Officer Ulich firsthand. The court found that the myriad inconsistencies in his testimony undermined his credibility with respect to his description of defendant's condition that morning and that there were therefore no facts upon which to base a finding of probable cause. Although the trial court also found it important that the Officer did not use roadside coordination tests or a portable breathalyzer or that the Officer was not trained to identify intoxicated individuals, this Court does not find those issues compelling. Nonetheless, based on the Officer's testimony, it appears that the findings of the lower court were not clearly erroneous and the decision should therefore be affirmed.

This case is one of the rare insights into credibility determinations in the suppression context.  The majority focuses on what was not in dispute by the officer's testimony.  In a sense, the majority finds some of the timing and other discrepancies in the officer's testimony irrelevant.  What was not in dispute was the Defendant's signs of intoxication, which in turn gave rise to a finding of probable cause.  (LC)

COA, AD1, & AT1 – New Decisions

The Court of Appeals announced new decisions today:

  • People v. King (Ct. App. 6/29/2010) (4-3) – In a brief memorandum, the majority reversed County Court, concluding that the defendant's motion to suppress should have been granted.  
  • People v. Perkins (Ct. App. 6/29/2010) (7-0) – photo array lawfully admitted into evidence. More on Perkins later. 
  • People v. Williams (Ct. App. 6/29/2010) (7-0) – defendant waived Antommarchi rights.

In addition, there are new decisions from the First Department and First Appellate Term.  (LC)

Two AT2 reversals for prosecutorial misconduct

Today's batch of decisions from the Second Appellate Term include two reversals for prosecutorial misconduct.

In the first, People v. Gutierrez (2d App. Term 6/21/2010), the defendant was on trial for Sexual Abuse 2º and Endangering the Welfare of a Child.  The prosecutor referred to the defendant taking "trophies" for his "collection," which implied that he had abused other children.  The majority found that this was reversible error.  In dissent, Justice Golia wrote that the curative instructions given by the court were sufficient to ameliorate any prejudice.

The second case, People v. Suh (2d App. Term 6/21/2010), involved a Brady violation.  It too was a sex crimes case.  The People failed to disclose the complainant's criminal record, which was readily available.  Here, the case was a close question and the complainant's credibility was directly at issue.  (LC)  

AT1 & AT2 – New Decisions

There are new decisions from the First Appellate Term and the Second Appellate Term.  (LC)