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)
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
The waning days of summer are a quiet time for the criminal courts. The appellate courts are busy with election appeals and getting ready for the next term. Many trial judges and attorneys are on vacation. Searching for news and cases of interest, I started going through recent trial court opinions on the nycourts.gov website. Low and behold I found a new iteration of one of my favorite cases, People v. Ennis.
The Defendant and his brother (Aaron Ennis) were drug dealers who ran a drug operation called the "Dog Pound." The Defendant was prosecuted for his role in a shooting. The issue for the Court of Appeals was whether the Defendant received effective assistance of counsel. During the trial, Aaron Ennis’ attorney confided to Sheldon Ennis’ attorney that Aaron had made a proffer to the People, during plea negotiations, that he alone had shot at the victim and that Sheldon was not present. According to Sheldon’s attorney, this information was communicated to him in confidence, with the understanding that it would not be disclosed until after trial. The People never disclosed the contents of the proffer to Sheldon’s lawyer. counsel’s lack of use of the information from Aaron’s attorney did not deprived the defendant of effective assistance of counsel. Importantly, the court noted that the defendant would not have been able to do anything meaningful with the information. He could not have called Aaron to the stand (since he would have asserted the privilege against self-incrimination). Other witnesses to the proffer could not have testified about its substance because the statement that the defendant did not shoot the victim and was not present was not against Aaron’s penal interests. Likewise, raising a Brady claim during the trial would not have resulted in a sanction against the People because even if the statement had been turned over, it could not have been admitted into evidence.The court noted, however, that the People's failure to disclose the proffer “cannot be condoned.”
The case has resurfaced again, this time in the context of a FOIL request that was denied by the District Attorney's Office. Supreme Court denied the Defendant's Article 78 petition because it was both untimely and lacked substantive merit.
In any event, this case is an important lesson that, for defendants, litigation does not end after direct review in the Court of Appeals is over. FOIL, CPL Article 440, and federal habeas corpus can cause a case to live on for years to follow. FOIL, in particular, can be a useful vehicle for inmates to identify evidence to support a habeas claim in federal court. (LC)
In People v. Ferrer (1st Dept. 1/26/2010), the First Department unanimously rejected a challenge to the SORA Risk Assessment Instrument. The defendant introduced the testimony of an expert witness, who contended that the RAI is unreliable and is not a scientifically accepted predictor of future dangerousness. The expert testified that a different instrument, the STATIC-99, is more reliable. The defendant presented evidence that he is a lower risk under the STATIC-99 than under the RAI.
Nevertheless, the court rejected the defendant's challenge because he failed to demonstrate that the RAI is unconstitutional. The court noted that, after a SORA hearing, a court may depart downward from the RAI score in its discretion. The RAI is thus merely presumptive. "Here, the hearing court's decision indicates that it weighed the RAI
against the defense evidence and arguments, and that it properly
concluded that defendant had a moderate risk of reoffense, so that a
level two assessment was appropriate." (LC)
A colleague recently brought to my attention CPLR 215(8), an interesting statute that may have implications for criminal practitioners who also handle personal injury cases. CPLR 215 generally governs the statute of limitations — one year — for intentional torts such as assault, battery, false imprisonment, malicious prosecution, libel, and slander.
CPLR 215(8) provides an exception to the one year limitations period when "it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises." The plaintiff then has one year from the termination of the criminal prosecution to the bring the civil lawsuit "notwithstanding that the time in which to commence such action has already expired or has less than a year remaining." (For sex crimes, the grace period is 5 years, not 1.) For the definition of termination, CPLR 215(8) directs the reader to CPL § 1.20, which provides that a criminal action is terminated with the imposition of sentence "or some other final disposition in a criminal court of the last accusatory instrument filed in the case."
There are obvious policy benefits to this statute for all involved:
- For the defendant, he is not forced to litigate two cases at the same time, particularly since the civil action could require him to present his own evidence to defend against a motion for summary judgment.
- Conceivably, a defendant could negotiation a global settlement of both the criminal and civil actions. If the plaintiff-victim wants restitution more than imprisonment/punishment, he or she can notify the prosecution of that interest.
- For the plaintiff-victim, he or she may be able to see how the People's evidence — which will probably his or her own evidence later on — at trial develops.
There are downsides, however. A defendant might not necessarily receive notice of the civil action. Having resolved a criminal action, he may move on with his life, only to discover — a year later — that he is being sued civilly. Evidence may be lost, etc.
My colleague and I are interested to see how this statute works in practice. If you have any anecdotes to share concerning CPLR 215(8), please contact me at email@example.com. (LC)