Category Archives: Appellate Procedure

Rare AD2 Reversal for Factual Insufficiency

Under its factual review power, the Appellate Division sits as a “thirteenth juror” to determine whether the factfinder—the jury or, in a bench trial, the judge—was justified in finding the defendant guilty beyond a reasonable doubt.  This assessment does not permit the court to view the evidence in the light most favorable to the People, as is required in a legal sufficiency review.  Since the Court of Appeals can only review questions of law, “weight of the evidence” decisions cannot be reviewed by that higher court.

Recently, the Second Department reversed a conviction on weight of the evidence grounds—a rare move.  In People v. Herskovic (App. Div. 2d Dept. 10/10/2018), the court reversed the defendant’s conviction for Gang Assault 2º and related charges, which stemmed from a 2013 attack upon the victim by a group of 20 Hasidic Jewish men in Brooklyn. The victim was not able to identify the defendant as one of the attackers.  The victim and eyewitnesses also gave conflicting accounts of the attack.

The People relied principally on DNA recovered from the defendant’s sneaker, which one of the attackers had taken off of him and thrown on a roof.   However, the DNA sample was small (97.9 picograms, short of the 100.0 picograms needed for a traditional DNA analysis) and was a mixture of two or more individuals’ DNA.   A criminologist testified to a procedure that the Office of the Chief Medical Examiner had developed to analyze such small and mixed samples to determine a “likelihood ratio.”  However, even with these “tweaked” protocols, the court found the DNA evidence lacking:

The analysis also found that it was 133 times more likely that the DNA sample originated from the defendant and the complainant than from the complainant and an unknown unrelated person. The FST analysis of the DNA was based upon a Caucasian population, and failed to take into account the genetic history of the defendant, a member of the Hasidic population. Moreover, the likelihood ratio result was only 133, a relatively insubstantial number.

Based on the weak testimony and “less than convincing” DNA analysis, the court reversed on the facts.  As a result, the defendant may not be retried.  For more on this case, see this article from the New York Law Journal (subscription required).

Preserve, Preserve, Preserve – And Don’t Threaten Eyewitnesses

In People v. Larregui (4th Dept. 9/28/18), the Fourth Department did not review many of the claims that the defendant raised based upon the fact that they were not preserved for review. The one issue the court did review revolved around the fact that a witness testifying about an event about a month following the robbery at issue.

In this case, the defendant was convicted by a jury of Robbery in both the First and Second Degree, and Assault in the Second Degree.  The case arose from an incident in which two women posing as prostitutes lured a victim into ambush by three masked men, who assaulted him, held a gun to his head and stole $200 cash.

The defendant in this case made several contentions that the court knocked down for lack of preservation: (1) that the evidence was legally insufficient to support a conviction because there was not corroborative evidence for the accomplice testimony; (2) the guilty verdict was repugnant because one of her accomplices was acquitted on all counts of the indictment; and (3) that prosecutorial misconduct deprived her of a fair trial inasmuch as she failed to object to any of the alleged improprieties.

The court noted that in order to preserve issues for review there must be objections “specifically directed at the alleged error.” Based upon the fact that there are so many issues that were dismissed on the basis that they were not preserved for review, it is clear that the Fourth Department values highly the notion of need to preserve issues for review. If an issue is not directly objected to, then it is not considered to be preserved for appellate purposes.  None of the issues were reversed in the interest of justice.

One issue that the court directly addressed was that the defendant objected to the trial court’s allowance of an eyewitness to testify regarding an incident that took place a month following the alleged robbery. The eyewitness testified that the defendant came to the eyewitness’s home, tried to break down the door, and threatened the eyewitness with violence for talking to the police. While the court does note that the defendant preserved the issue for review, it nevertheless rejected the defendant’s contention because evidence of threats made by the defendant against one of the People’s eyewitnesses, despite being prior bad acts, is admissible on the issue of consciousness of guilt. The Fourth Department noted that this was not an abuse of discretion because the probative value outweighed the prejudicial effect.  (JC/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

Robles and Article 78

One other point worth mentioning about Robles is footnote 5, where the majority states, “We do not address whether Robles could have pursued relief by commencing a CPLR article 78 proceeding, ‘from which an appeal to this Court might ultimately have been taken’ (Newsday, 3 NY3d at 652).”  That’s a very interesting issue.  Would Article 78 be available to pursue relief?  I suppose the respondent would be the JSC who denied the motion to quash, and the basis would be CPLR 7803(3) or (4).

But there’s a problem with that approach.  CPLR 7801(2) states: “Except where otherwise provided by law, a proceeding under this article shall not be used to challenge a determination: … which was made in a civil action or criminal matter.” So that there is not an otherwise appeal process (CPLR 7801(1)) if of no moment if the decision is part of a civil or criminal action, which the Court in Robles says that it is.  The key language, though, is the last clause of CPLR 7801(2): “unless it is an order summarily punishing a contempt committed in the presence of the court.” If the reporter is held in summary contempt for refusing to testify, then an Article 78 proceeding can be commenced.

The question then is the nature of such contempt proceedings.  At least one authority takes the position that “[a]n order of contempt is not summarily granted and is not subject to review under Article 78 where it is made after due warning upon a record adequate for judicial review and with an opportunity for the contemnor to purge him- or herself of the contempt.” 6 N.Y. Jur. 2d Article 78 § 47 (citing Hunter v. Murray, 130 A.D.2d 836 [3d Dept. 1987] [“Accordingly, the court possessed the jurisdiction, power and discretion to hold petitioner in criminal contempt (Judiciary Law § 751), and since petitioner had available to him full judicial review of the record of proceedings finding him in contempt through normal avenues of appellate review, relief under CPLR article 78 is not available (see, Matter of Morgenthau v. Roberts, 65 N.Y.2d 749, 492 N.Y.S.2d 21, 481 N.E.2d 561; Matter of Legal Aid Society of Sullivan County v. Scheinman, 53 N.Y.2d 12, 439 N.Y.S.2d 882, 422 N.E.2d 542). Petitioner’s argument of the applicability of the provisions of CPLR 7801(2) is without merit, since the order of contempt herein was not “summarily” granted, but made after due warning upon a record adequate for appellate review and with an opportunity to purge himself of the contempt.”]).

I haven’t dug too deeply into this aspect of Article 78, but I suspect we will see this issue further developed the next time a report unsuccessfully moves to quash a subpoena. (LC)

Non-Party Cannot Appeal Order Denying Motion to Quash Subpoena Issued During Criminal Proceeding

An order resolving a nonparty’s motion to quash a subpoena issued prior to the commencement of a criminal action is final and appealable. However, in Matter of People v. Juarez (Robles) (Ct. App. 6/27/18) (per curiam) (4-3), a closely divided Court of Appeals held that no direct appellate review is authorized for an order resolving a nonparty’s motion to quash a subpoena issued after the commencement of a criminal action.

This case arose out of a criminal prosecution in which the People charged Conrado Juarez with one count of second-degree murder for the killing of “Baby Hope,” a four-year-old girl. In 1991, the victim’s partially decomposed body was found in a cooler near the Henry Hudson Parkway. She had been sexually assaulted and suffocated, but the semen investigators discovered was too degraded for analysis. For two decades, police could not identify the victim or the killer. In 2013, officers tracked down the victim’s mother, and from there, identified defendant as the probable killer. After his arrest, defendant Juarez gave a videotaped confession in which he admitted to strangling the victim during a sexual encounter.

After giving the videotaped confession and while in pre-trial detention, the defendant gave an interview to nonparty Frances Robles, an investigative reporter with the New York Times. The Times subsequently published a story based on this interview, in which the defendant offered an alternate account of the victim’s death that differed in some respects from the video-taped confession.

Before defendant’s Huntley hearing, the People obtained two subpoenas meant to compel Robles’ participation in the case: one for Robles’ own testimony and one for Robles’ written interview notes. Robles moved to quash both. Continue reading