In People v. Hackett (4th Dept. 11/9/2018), the Fourth Department analyzed a cell phone search under the 2014 Supreme Court decision Riley v. California to find that officers may send a confirmatory text message to a defendant’s cell phone when they have been in undercover communication with him to ensure they have the proper defendant. This confirmatory text may then be used to support a valid search warrant of the defendant’s cell phone. Continue reading
In People v. Grimes (Ct. App. 10/23/2018) (5-2), the Court of Appeals held that, under article I, section 6 of the New York State Constitution, a defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a criminal leave application. Judge Wilson authored a dissent, joined by Judge Rivera. Continue reading
What type of injury constitutes serious physical injury under New York’s Penal Law? This question of fact depends on the jury and, because of the legal sufficiency standard, Appellate Courts are hard-pressed to change decisions. In People v. Garland (Ct. App. 11/20/2018) (5-2), the defendant fired five shots at a crowd and hit a bystander in the leg. The medical records revealed that the bullet became stuck in the soft tissue near the victim’s femoral artery; the bullet was never removed from his leg because of the medical risks of doing so. Continue reading
In People v. Timmons (4th Dept. 10/5/18), the Fourth Department allowed for a reconstruction regarding whether the trial court did not provide adequate notice to defense counsel when it did not read out a jury note verbatim.
The defendant in this case was tried and convicted by a jury of Murder 2º. He appealed to the Fourth Department, and it affirmed the conviction. However, the defendant filed a writ of error coram nobis, because he contended his appellate counsel failed to raise an issue on appeal that may have merit: a violation of CPL § 310.30 in regard to a note from the jury in its deliberations.
CPL 310.30 requires the jury to return to the courtroom after notice to both the People and counsel for the defendant and give instruction as the court deems proper. When there is a substantive note from the jury, the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury. This means actual, specific content of the jurors’ request must be disclosed. The Court of Appeals has held that a trial court’s failure to read a jury’s note verbatim deprives counsel of the opportunity to analyze accurately the jury’s deliberations and frame intelligent suggestions for the court’s response.
The defendant here contended that the trial court failed to read the note from the jury verbatim, and the transcript shows that instead in the reading both in front of and outside the presence of the jury, omitted to read the jury’s request to have a read back of the medical examiner’s testimony, and to have that testimony read first.
The People contended that it was the transcript that was in fact incorrect, and that the trial judge did read verbatim the jury note. They relied upon an affidavit from the court reporter that was submitted in response to the defendant’s writ. The affidavit stated that a stenographic error may have resulted in a transcript that did not accurately reflect whether the court read the entire content of the note verbatim in open court prior to responding to the jury.
The Fourth Department held that the alleged error in the transcript of the court’s on the record reading of the note was subject to a reconstruction hearing because the trial judge is the final arbiter of the record certified to the appellate courts. Therefore, the case was reversed and remitted to the County Court for the reconstruction hearing. (JC)
When must a defendant invoke his or her right to proceed pro se in order for the request to be considered “timely”? In People v. Crespo (Ct. App. 10/16/2018) (4-3), the Court of Appeals held that a request to proceed pro se is timely if made “before the commencement of trial,” defined as before the start of jury selection. After the start of jury selection, the right to proceed pro se is “severely constricted,” but the trial court may grant such an application in its discretion. Judge Rivera authored a lengthy dissent, joined by Judges Fahey and Wilson. Continue reading