Category Archives: N.Y. Court of Appeals

Request to Proceed Pro Se Untimely If Made After Start of Jury Selection

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

Sufficiency of Accusatory Instrument Charging Patronizing a Prostitute 3º

A few days ago, the Court of Appeals reversed the Appellate Term’s decision dismissing an accusatory instrument as jurisdictionally defective.  At issue was whether the term “manual stimulation” in the context of Patronizing a Prostitute 3º was sufficient.

At the Appellate Term, the defendant argued, “the [term] ‘manual stimulation’ he sought could refer to a ‘foot rub, therapeutic massage, chiropractic adjustment, personal training – even an energetic match of thumb wrestling’.”

I think I’ll let the Court of Appeals’ opinion on this issue speak for itself:

The factual allegations that defendant requested “manual stimulation” from a woman on a street corner, for a specific sum of money, at 2:25 a.m., supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (People v Dreyden, 15 NY3d 100, 103 [2010]). Defendant’s argument that “manual stimulation” could be indicative of nonsexual conduct ignores the inferences of sexual activity to be drawn from the factual context in which the statement was alleged to have been made—a late night solicitation of a physical personal service from an individual on a public street, in exchange for a sum of money. Any assertion that defendant was referring to a nonsexual activity “was a matter to be raised as an evidentiary defense not by insistence that this information was jurisdictionally defective” (see Casey, 95 NY2d at 360). The fact that the instrument used a clinical phrase for the sexual activity alleged does not render the instrument jurisdictionally defective.

(LC).

Unanswered Jury Notes: Cause for New Trial?

In People v. Parker (Ct. App. 6/28/2018) (Rivera, J.),  the Court granted the defendants’ request for a new trial due to the trial court’s failure to provide “meaningful notice” of two jury notes to defense counsel. The defendants were convicted of Robbery 2º after allegedly robbing thousands of dollars from a commercial establishment.

On the second day of jury deliberations, the jury sent three notes to the court: one note requested definitions of the charged crimes and testimony linking witnesses to where the defendants were seen and caught; a second note requested further testimony relating to fingerprint evidence; and a third requested testimony from the victim and his wife. In response to the jury’s notes, the court initially responded to solely the first note and subsequently dismissed the jury for a one-hour lunch break. However, immediately after the break and without receiving response to its latter two notes, the jury entered a verdict.

Under CPL § 310.30, a trial court is required to direct that the jury be returned to the courtroom after notice has been given to the defense counsel of any substantive notes provided by the jury. This allows defense counsel an opportunity to formulate a response to the jury’s inquiries before the jury’s return to the courtroom. In this case, it was undisputed that the defense counsel was not informed of the contents of the latter two jury notes. As the Court provides in its opinion, the proof that the trial court relayed the substance of the notes to the defense counsel must be specifically in the record. Here, it was not. Therefore, the Court found that the “sole remedy” in failing to comply with CPL § 310.30 was to reverse and grant the defendants’ a new trial.

Chief Judge DiFiore dissented, remarking that the holding of the majority’s leading precedent focused on a more general concept. She argued that O’Rama‘s holding required the trial court’s compliance with providing notice to defense counsel of the jury notes; it did not mandate the inclusion of such notice in the record. The Chief Judge wrote that the defense counsel was indeed informed of the overall substance of the jury notes in an off-the-record meeting. As such, she argued that ordering a new trial was an excessive remedy and completely off-base with O’Rama‘s requirements. Instead, Chief Judge DiFiore proposed the remedy of a reconstruction hearing, which is provided to amend ambiguities in the record. Importantly, the Chief Judge also noted that the jury was well aware that the trial court had not responded to the latter two notes it had received. However, the jury’s verdict ultimately rescinded the requests in those notes, further supporting the argument that ordering a new trial was unwarranted (AP/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

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)