Category Archives: Criminal Procedure Law

When Deliberating Jurors Ask a Question, Answer It

When a jury asks clarifying questions of the court when deliberating, the court must meaningfully answer the question, without prejudicing the defendant. In People v. Wood (4th Dept. 7/25/2018), the Fourth Department held that a supplemental instruction provided by the court in response to a jury question constituted an abuse of discretion.

The defendant in this case was convicted by a jury verdict of two counts of CPW 2º and one count of Menacing 2º.  (The first count of CPW 2º charged possession outside the home of a loaded firearm.  The second count of the same crime charged possession with intent to use it against another.)

This case arose from a breakfast at a restaurant, which the defendant deemed cost too much and complained. Weeks later, he returned to the restaurant with a loaded gun, pointing it at employees and demanding sexual favors in exchange for the cost of breakfast. He was asked to leave and did so, and was then apprehended nearby by police. At trial, the defendant testified that the gun was a war antique of his grandfather’s and he was transporting it to another individual, keeping it on his person so that it was not stolen. The defendant claimed that he entered the restaurant to make amends with the complainant after his initial outburst. In his version of events, she insulted him, so he insulted her back and left, never displaying the weapon.

During juror deliberations, the jury sent a note requesting clarification on the terms “intent” and “unlawfully.” Continue reading

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

The Importance of Juror Conduct: How Not Following Instructions Can Impact A Post-Trial Verdict

When jurors communicate with third parties about the case in which they are hearing, it can adversely impact the trial by prejudicing the defendant. In People v. Neulander (4th Dept. 6/29/2018), one juror’s misconduct impacted the defendant’s rights and resulted in a new trial.

The defendant in this case was convicted by a jury of Murder 2º of his wife and Tampering with Physical Evidence.

The defendant contended that his conviction should be set aside on grounds of juror misconduct. Under CPL 330.30(2), the verdict may be set aside for juror misconduct if the misconduct may have affected a substantial right of the defendant, and it was not known to the defendant prior to the verdict. The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.

The defendant established during his CPL 330.30(2) hearing that a juror engaged in text messaging with third parties about the trial, including receiving a text from her father saying: Continue reading

Defendant’s Waiver of Grand Jury Indictment

Initially, under the New York Constitution, criminal defendants were unable to waive an indictment by Grand Jury. However, in 1974, the Constitution was amended to permit  waiver so long as a waiver is signed in open court in front of defendant’s counsel. Recently, the Court of Appeals affirmed this practice in People v. Myers (Ct. App. 6/27/2018) (Wilson, J.) (5-2).

Mr. Myers waived his right to an indictment by the Grand Jury and immediately after pleaded guilty to Burglary 3º. Prior to this, Mr. Myers had an opportunity to confer with his counsel off the record, and while the judge called the other cases on the calendar, he had an opportunity to meet with his attorney at the lectern about the waiver form. The judge then asked Mr. Myers’ counsel if he was ready, and when he said yes, the judge signed the order approving the waiver after determining it met the statutory requirements.

Mr. Myers argued that the indictment was invalid because there was no evidence the waiver was executed in open court and there was no conversation with the court on the subject. The Appellate Division upheld the waiver.

New York Constitution, article I, section 6 allows for waiver of a grand jury indictment if it is consented by the district attorney, and “evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel.” In this case, the record shows that the waiver was signed in open court. Mr. Myers’ attorney notarized his signature on the waiver on the date of the court appearance.

The defendant’s argument that there was no inquiry by the court into whether his waiver was knowing and intelligent was unsupported by the New York Constitution, the Court held. Instead, the Court found that the requirements set forth in the statute (signed in open court, in the presence of counsel) were met. Thus, the Court declined to read into the statute the additional requirement of the judge conducting an oral inquiry on the record. The Court noted that “[c]ompliance with the constitutionally-specified waiver mechanism establishes the prima facie validity of the waiver of the right to prosecution by indictment.” There was no evidence on the record that the waiver was involuntary, unknowing, or unintelligent, so the prima facie showing was deemed by the Court to be conclusive.

Therefore, the Court affirmed the order of the Appellate Division but noted:

We emphasize, however, that the better practice—captured in the relevant model colloquy—is for courts to elicit defendants’ understanding of the significance of the right being waived, to minimize future challenges to the effectiveness of the waiver (see Waiver of Indictment; Superior Court Information Procedure & Colloquy, https://www.nycourts.gov/judges/cji/8-Colloquies/ [accessed June 22, 2018]).

Judge Rivera dissented because she believed that “[n]o waiver is valid without sufficient judicial inquiry.” (JC)

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