Category Archives: Appellate Procedure

What is the “interest of justice” anyway?

"Interest of justice" is used in a couple of places in the CPL.  One is for a dismissal of an accusatory instrument at the trial level.  The test is well established and there is abundant case law explaining when a trial court should and should not grant a motion to dismiss in the interest of justice. 

There is another mention of the term in the CPL: Intermediate appellate courts (Appellate Division, Appellate Term, County Court)—but not the Court of Appeals except in death penalty cases—can reverse or modify a judgment in the interest of justice.  This allows the courts to reverse or modify for unpreserved questions and to reduce a sentence that is lawful but excessive.  Unfortunately, there is little guidance for courts to determine whether to exercise this discretion.

In a recent article, I explored the interplay of preservation and "interest of justice" jurisdiction.  I compare the federal and state standards and offer a test for courts to apply.  The article can be downloaded from my SSRN page.  (LC)

Standing must be raised before suppression court

Twenty-four years ago in People v. Stith, 69 N.Y.2d 313 (1987) the Court of Appeals held the People must raise the issue of a defendant's standing to challenge a warrantless search at the trial court level. However since that decision, three of the four Appellate Departments have allowed the issue of standing to be raised for the first time on appeal. 

In People v. Hunter (Ct. App. 6/2/2011) (7-0), the Defendant was arrested in 2005 after police conducted a warrantless search of his mother's apartment. During the search police found money used in a "buy and bust" operation. The Defendant moved to suppress the recovered buy money claiming it was the result of an unlawful search. 

At the suppression hearing, the People offered evidence that the search of the apartment was consented to, in writing, by the Defendant's mother. The People argued the entry and the search were justified under both the "exigent circumstances" and "hot pursuit" exceptions to the warrant requirement.  The People called two police officers to testify at the suppression hearing. No witnesses for the defendant were presented. The People never raised the issue of standing at the suppression hearing. The trial court denied the defendant's motion to suppress on the grounds of "exigent circumstances" and "hot pursuit." 

After denial of his motion the defendant pleaded guilty to criminal possession and sale of a controlled substance in the third degree and quickly appealed his conviction arguing the trial court erred in not suppressing the buy money.

The Fourth Department upheld the denial of defendant's motion to suppress the evidence on the grounds that the defendant had not established he had standing to challenge the search of the apartment. Interestingly, standing was never raised at the trial level; it was raised by the People for the first time on appeal.

The People must "alert the suppression court if they believe the defendant has failed to meet his burden to establish standing." Since the People never raised the issue of the defendant's standing at the suppression hearing or in its reply to the Defendant's motion papers, the Appellate Division cannot rely on standing to affirm the decision.  (MK/LC)

 

People can appeal Brady dismissal

The People have a right to appeal an order dismissing an indictment where the authority to dismiss arises from a delineated set of statutory provisions.

In People v. Alonso (Ct. App. 5/3/2011) (Lippman, CJ.) (5–2), the trial court dismissed the indictments with prejudice after a Brady violation.  The court reasoned that the magnitude of the violation required dismissal.  The dismissal was authorized pursuant to the catch all language in CPL § 240.70(1) which provides that a court considering a discovery violation may "take any other appropriate action."

The People appealed the order pursuant to CPL § 450.20, which sets forth the bounds of the People’s right to appeal dismissal of an indictment.  The Appellate Division dismissed the appeal without considering the merits.  It reasoned that the People lacked the right to appeal due to the authority by which the indictments were dismissed.  Section 450.20 enumerates a list of circumstances which give the People a right of appeal, but § 240.70 is not listed.

In reversing the Appellate Division and remanding for consideration of the appeal on the merits, the Court of Appeals held that the trial court lacked the authority to dismiss the indictment pursuant to § 240.70(1) alone.  It reasoned that § 240.70 empowers a court to construct a remedy for a discovery violation, but that the remedy may not include dismissal unless a separate source of authority is invoked.  The Court of Appeals found that the trial court dismissed the indictments by relying on the express authority set forth in CPL § 210.20(1)(h).  Section 210.20(1)(h) provides that a court may dismiss an indictment where a “legal impediment to conviction” exits.  The Court of Appeals explained that once the trial court found that the Brady violation required dismissal of the indictments a “legal impediment to conviction” arose, and the subsequent dismissal necessarily relied on the authority from § 210.20(1)(h).  Section 210.20 is listed in § 450.70, and thus the Court of Appeals held that the People had a right to appeal.

Judge Jones was joined by Judge Smith in dissent.  They argued that the court failed to follow the precedent set forth in People v Dunn, 4 N.Y.3d 495 (2005).  The dissenters pointed out that the Dunn court, in affirming dismissal of an appeal from a dismissal of an indictment, held that it would “not resort to interpretive contrivances to broaden the scope of CPL 450.20."  See Dunn, 4 N.Y.3d at 497.  The dissenters considered the conversion of a dismissal under § 240.70 into a dismissal under § 210.20 as the sort of “interpretive contrivance” proscribed in Dunn. (MM/LC)

Appeals: the DA “rubber room”?

Assistant district attorneys have been in the news recently but not in a good way.  A Bronx prosecutor is facing a DWI charge while a Niagara County ADA was terminated after being accused of Aggravated Harassment and Stalking.  The Bronx prosecutor, Jennifer Troiano, was moved to the Appeals Bureau, the Daily News reported.  That paper characterized the move as a "demotion" to the District Attorney's Office's "Rubber Room."  An unknown source told the News, "Problematic prosecutors get buried there."  I was very surprised to read this characterization.  In my time in the Appeals Bureau in the Bronx, I found my fellow attorneys to be the best and brightest of the office—fantastic writers who knew every inch of the Penal Law and CPL.  It was not a dumping ground for "problematic prosecutors" as the unnamed source in the News claims. 

These cases raise a bigger issue, though, about what chief prosecutors should do if one of their assistants is arrested.  The arrest triggers all sorts of problems, including potential conflicts of interest, implications for police-prosecutor relations, credibility with the court, and public perception. On the other hand, the accused has certain rights, first and foremost being the presumption of innocence.  It seems like the best course of action is to follow the practice used by most police departments in this type of situation: either suspend with pay or put the person on administrative duty.  But appellate work is not what I mean by "administrative duty."  It is real, substantive work and the People deserve ADAs handling it to be focused and effective.  A prosecutor with charges of his or her own should be working the photocopier, not handling cases of any kind.  (LC)

Failure to raise statute of limitation defense on the record does not necessarily constitute IAC

An IAC claim based on failure to raise a statute of limitations defense must be denied when that omission constituted a legitimate trial strategy.  In People v. Evans (Ct. App. 3/31/2011) (Pigott, J.) (6-1), the Defendant was indicted on three counts of Murder 2° and one count of Manslaughter 1° for events that took place approximately eight years earlier.  At a bench trial, defendant was acquitted of Murder but convicted of Manslaughter.  Trial counsel did not mention the expiration of the five-year statute of limitations for Manslaughter on the record.

Defendant’s CPL § 440.10 motion to vacate due to IAC was denied by the trial court with the belief that defendant could raise IAC on direct appeal.  Application for leave to appeal the denial of the motion was denied by the Appellate Division.  On direct appeal, the Appellate Division affirmed the conviction with the indication that the IAC claim concerned matters outside of the record and therefore could not be reviewed on appeal but could only be brought in a CPL § 440.10 motion.  In short, the Defendant was trapped in  appellate limbo.

The Court of Appeals provided an aspirational instruction to the Appellate Division to consolidate CPL § 440.10 motion appeals with direct appeals in the future.  The court nevertheless  conducted its review of defendant’s case on the limited record available.  The court held that failing to mention the statute of limitations as a defense was objectively a legitimate trial strategy, and that trial counsel’s subjective lack of awareness of the defense was immaterial.  The court’s objectivity analysis focused on the strategy of giving the trier of fact an avenue of finding defendant guilty of a lesser charge.  Had the Manslaughter charge been dismissed, the trier of fact would have been left with choosing between Murder 2º and an acquittal. 

In dissent, Judge Jones argued that defendant’s IAC claim should be granted and his conviction vacated.  The dissent disagreed with the presumption of legitimacy that the majority afforded to trial counsel’s omission, and reasoned that there was no support for a finding that failure of trial counsel to discuss the defense on the record was a legitimate strategy.  The dissent pointed out that a defendant may consent to having a time barred charge considered by a trial court, but noted that the record here did not suggest that trial counsel was sufficiently cognizant of the defense to consciously consent to waiving it.  (MM/LC)