Category Archives: N.Y. Court of Appeals

Defendant’s Refusal to Testify in Separate Prosecution Violated Cooperation Agreement, Even Though Agreement Did Not Expressly Require Such Testimony

In People v. Rodriguez (Ct. App. 4/2/19) (6-1), a majority of the Court of Appeals found that the defendant violated the terms of his cooperation agreement when he refused to testify in a separate, unrelated prosecution. Therefore, the Court affirmed the Appellate Division, Third Department’s decision and held that the County Court did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea based on his claimed subjective misinterpretation of the agreement. Continue reading

COA Orders a 440 Hearing – But Where is the Factual Dispute?

The Court of Appeals took the rare step of ordering a hearing on a defendant’s CPL § 440.10 motion. In People v. Brown (Ct. App. 5/2/2019) (6-1), the defendant and a co-defendant were found guilty of Depraved Indifference Murder and related charges. The defendant’s lawyer was hired to represent a third individual, who was present at the scene, on unrelated charges. The trial court was informed of the potential conflict of interest and conducted a Gomberg inquiry after appointing conflict counsel. The defendant waived any possible conflict of interest. The case proceeded to trial with the original attorney representing the defendant.

The defendant later apparently had a change of mind and brought a CPL § 440.10 motion, arguing he was deprived of effective assistance of counsel because his lawyer had a conflict of interest. Specifically, the defendant alleged that the third individual had actually paid the lawyer to represent the defendant. He stated that the conflict counsel only explained to him that his attorney would be prohibited from cross-examining the individual if he was called as a witness; the implications of the third individual paying for the attorney’s fees were not explained to him. However, the defendant had told the trial during the Gomberg inquiry that he or his family had hired the lawyer. There was no mention of the third individual doing so. The defendant did not provide an affidavit from his trial lawyer in connection with his 440 motion.

The Court of Appeals noted that there are two types of conflicts of interest: actual or potential, but that even some actual conflicts can be waived. Without identifying the factual issue in dispute, the Court said that the motion court erred in not holding a hearing:

On this record, we conclude that Supreme Court abused its discretion in determining that a hearing was not warranted to address the allegations contained in defendant’s CPL 440.10 motion regarding Chabrowe’s representation of defendant and whether any conflict of interest existed warranting reversal. 

Judge Stein, in dissent, pushed back. She noted that a motion court, in the first instance, must decide whether a 440 motion can be decided without a factual hearing. Quoting from People v. Chu-Joi, Judge Stein wrote, “[T]he court is not required to credit defendant’s evidence of fraud — particularly, his own, utterly unexplained, fraud on the trial court — that is self-serving and uncorroborated because the court does not have to accept every sworn allegation as true” (cleaned up). Here, the fraud upon the trial court was the defendant’s own statement during the Gomberg inquiry that he or his family had hired the attorney; there was no mention of the third individual doing so.

Ultimately, I am as perplexed as Judge Stein as to what factual issue the motion court is to decide. The defendant told the trial court that his lawyer was paid by him or his family and, in any event, he expressly waived any conflict of interest after consulting with conflict counsel. Where is the issue?

Underlying the majority’s decision may be justified annoyance in how the motion court handled the defendant’s CPL § 440.10 motion in the first instance. Quoting from the majority: “Supreme Court made no findings of fact or conclusions of law and denied the motion in a one sentence order, stating: ‘[d]efendant’s motion pursuant to CPL 440.10 is denied without a hearing for the reasons set forth at great length in the People’s opposing [papers].'” Appellate courts look with disfavor on trial court decisions that merely adopt one party’s briefs without further analysis. So perhaps what the Court of Appeals was looking for was some independent analysis and explanation of why the People’s position was correct. (LC)

Harmless Error Saves Conviction

In People v. Martin (Ct. App. 3/28/2019), the Court held that even if there was error in allowing the defendant’s statements into evidence under the pedigree exception to Miranda, it was harmless error and would not warrant reversal. Continue reading

The Futility of Cross-Examinations in a World Where Past Recollections Recorded Are Admitted

In People v. Tapia (Ct. App. 4/2/19), the Court held that a testifying witness’s prior Grand Jury testimony was properly admitted as a past recollection recorded to supplement his trial testimony.

A police officer had testified, before the Grand Jury, as to the events of a violent altercation. However, at the time of trial, this officer, who had retired from law enforcement, revealed that the could not independently recall the details of the altercation. So, the People sought to have his prior Grand Jury Testimony admitted as a past recollection recorded. Defense counsel objected, claiming that such an admission would violate the Defendant’s Sixth Amendment right to confrontation since the officer would not be subject to cross-examination due to his lack of memory regarding the incident. Simultaneously, the Defendant requested a missing witness charge in the event that the officer would not take the stand. Considering these two rather contradictory arguments, the trial court found that the officer was available for confrontation as “[h]e is literally subject to cross-examination by being on the witness stand under oath and passed to [the defendant] as a witness for cross[-]examination.” The officer, therefore, testified at trial and read portions of his prior grand jury testimony into the record. On cross-examination, the officer admitted that he could not swear that he reviewed the court reporter’s transcript of his testimony for accuracy before the trial. The jury, considering all of the evidence presented, then convicted the Defendant of Attempted Assault 1°.

In considering the defendant’s appeal, the Court considered the basic requirements in admitting a past recollection recorded:

1) the witness must have observed the matter recorded; 2) the recollection must have been fairly fresh at the time when it was recorded; 3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and 4) the witness must lack sufficient present recollection of the information recorded.

The Court determined that the trial court had not abused its discretion, and that the People properly satisfied all the requirements in the admission of the past recollection recorded in the case. During his direct examination, the officer stated that he testified truthfully before the Grand Jury, and since that testimony took place merely a few days after the alleged incident, his recollection of the altercation was fresh. The officer’s statement on cross-examination as to the court reporter’s accuracy was meritless in the eyes of the court – the court reporter certified the Grand Jury transcript as a true and accurate record of the testimony. The Defendant’s Confrontation Clause argument was similarly fruitless – after all, the purpose of the Confrontation Clause is to provide the Defendant to confront the witness “in a face-to-face encounter before the trier of fact,” which in fact happened here. Therefore, the Confrontation was not violated in this case, since the officer testified in court “even if [his] memory was faulty.” The trier of fact in this case was afforded the opportunity to assess the witness’s credence and reliability, based on his testimony during the trial itself and his grand jury testimony.

The dissent stressed that the admission of the officer’s grand jury testimony violated both CPL 670.10 and the Court’s prior decision in People v. Green. Judge Wilson, writing for the dissent, emphasized that the officer’s Grand Jury testimony had not been subject to cross-examination, and therefore, it was not “subject to vigorous truth testing.” As such, the “majority’s decision [took] a large step towards reinstating the very procedures the common law deemed illegitimate: trial by declaration or affidavit.” The majority’s decision, in fact, has the potential of setting dangerous precedent in which a defendant will no longer have the opportunity to challenge a witness’s recollection of events. Since the prosecution may admit testimony and evidence that was not subject to cross-examination, a witness with faulty memory will rely solely on what is written in the minutes or sworn affidavit. Therefore, the defendant will no longer be able to “confront” the witness, but rather will be left to “address” a document that the witness reads from in front of the fact-finder. In the case of this defendant, in particular, the dissent was largely concerned with the lack of evidence to convict the defendant of Attempted Assault 1°.

Event Tickets Create a Legal Right Under New York Penal Law

In People v. Watts (Ct. App. 11/20/2018) (Fahey, J.), the Court of Appeals considered the issue of whether an event ticket, such as a concert or sporting event ticket, affects a legal right, interest, obligation, or status within the meaning of Penal Law § 170.10 (1). The Court held that it does.

Defendant Rodney Watts was indicted on multiple counts of Criminal Possession of a Forged Instrument 2º for selling counterfeit concert tickets. Watts moved to dismiss the indictment, contending that a counterfeit concert ticket falls outside of the Forgery 2º statute and, therefore, the Criminal Possession of a Forged Instrument 2º statute, because a concert ticket does not “affect a legal right, interest, obligation or status” under the statute. Additionally, Watts argued that the catchall clause of Penal Law § 170.10(1) must be read to contemplate only documents of the same character as a “deed, will, codicil, contract, assignment, commercial instrument, [or] credit card.” Watts argued that concert tickets are not any of these. The trial court denied Watts’ motion.

Watts was subsequently arrested and indicted again but this time for possession of counterfeit sporting event tickets. His motion to dismiss on the same grounds as before were similarly denied by the trial court. Watts eventually pled guilty to two counts of Criminal Possession of a Forged Instrument in the 2° in satisfaction of both indictments. Watts appealed his conviction arguing that the indictments were jurisdictionally defective, but the Appellate Division affirmed the conviction.

The defendant’s argument on appeal was that event tickets are revocable licenses and do not “affect a legal right, interest, obligation or status” under the statute. The Court agreed in part. Relying on prior case law, the Court stated that Watts was correct that an event ticket was a revocable license, but the nature of an event ticket could affect a legal right or legal status. An event ticket is a license, issued by the proprietor, as convenient evidence of the right of the holder to admission into the event.

Additionally, the Court based its reasoning on contracts law principles. The Court stated that under certain circumstances, a ticket holder can recover the price of an event ticket in an action for breach of contract. The purchase of an event ticket is a contract that binds the creator and if the holder of the ticket were to be wrongfully ejected or denied entry from the event, he or she would have a breach of contract claim against the licensor. Based on these principles the Court held that event tickets do create a legal right under the Penal Law as well. (MK/LC)