Category Archives: New Decisions

Judges Must Exercise Sound Discretion Before Proceeding With a Trial In Absentia

In People v. Palmer (App. Term 2d Dept. 4/4/2019) and a similar case, People v. Lobato, the Second Appellate Term held that a trial court’s failure to make a record of the Parker factors before proceeding to trial in absentia constituted reversible error.  Both cases arose from the Justice Court of the Town of Greenburgh in Westchester County.  The Town Attorney did not file briefs in the cases.

In Palmer, the defendant was charged with driving to the left of pavement markings and failure to signal. After pleading not guilty and demanding trial, the defendant signed a Parker admonishment which informed her, among other things, that if she failed to appear in court, the trial would proceed in her absence. Seven months later on the date of trial, the defendant failed to appear and the trial proceeded in her absence. She was convicted and the court imposed sentence.

Similarly, in Lobato, Defendant was charged with failing to obey a traffic-control device. In February 2017, the defendant signed a Parker admonishment and the matter was adjourned to October 2017 for trial. On that date, when the defendant failed to appear, the Justice Court stated on the record that “it will proceed with the inquest” prior to holding trial where the defendant was subsequently convicted.

One of the most fundamental rights guaranteed by both the Federal and State Constitutions is the right for a defendant to be present at their trial. Although a defendant may waive this right after being properly advised, trial in absentia is not automatically authorized. Instead, a court must inquire into the surrounding circumstances to determine if the defendant’s absence is deliberate and to recite on the record the factors it considered. Factors to consider are: the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling the trial and the chance that evidence will be lost or witnesses will disappear.

In both these cases, the trial court failed to state on the record whether it considered any of these factors prior to proceeding to trial. This failure as the Court says, constitutes reversible error and thus, both defendants’ convictions were reversed.  (MK/LC)

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°.

Appellate Review of a Joined Indictment with One Plea

In People v. Holz (4th Dept. 12/21/2018), the Fourth Department refused to review a suppression ruling of the lower court on a count in an indictment that did not have a final judgment, when the defendant had pleaded guilty to a related count in the same indictment.

At the trial level, the defendant was convicted of Burglary 2°. The indictment was for 2 different burglary incidents, on October 1, 2014 and October 3, 2014, and the defendant pleaded guilty to the October 1 incident, satisfying the both counts of the indictment. At the appellate level, the defendant was seeking suppression of jewelry recovered from a police stop that took place on October 3. The defendant did not plead guilty, nor was he convicted of the October 3 burglary.

The Court’s inability to do anything regarding the defendant’s contention is rooted in the limited nature of appellate jurisdiction. The majority cited a First Department case for the contention that “the judgment of conviction on appeal did not ensue from the denial of the motion to suppress, and the latter is, therefore, not reviewable” pursuant to CPL 710.70 (2). The issue the Court was faced with is not whether the lack of suppression is harmless, but whether the Court has jurisdiction to review the ruling at all.

The majority followed the precedents of its three sister departments in holding that a defendant may not plead guilty to one count of an indictment and then appeal the denial of a suppression motion of another count in which no judgement was rendered but was covered by the plea.

Presiding Justice Whalen dissented, because he found that the majority adopted too strict of an interpretation of CPL 710.70 (2). He noted that the defendants conviction did follow as a consequence or result of the suppression, and therefore, the majority ignored the plain meaning of the statutory language. (JC/LC)

Prosecutorial Misconduct: How Much Warrants Reversal

In People v. Fick (4th Dept. 12/21/2018), the Fourth Department found that a prosecutor’s cross-examination of a witness regarding inadmissible evidence constituted proper misconduct; however, the majority did not find that it was enough to constitute a reversal of the defendant’s convictions.

At the lower court, the defendant was convicted of Burglary 1°, Grand Larceny 4°, and Unlawful Imprisonment 1°. The defendant made several contentions on appeal that were rejected by the Court. The Court found that the evidence did support a conviction and the verdict was not against the weight of the evidence.

The defendant also contended that he was deprived of a fair trial by the prosecutor. However, during trial he did not object to any alleged instances of prosecutorial misconduct, so this contention was not preserved for appeal. The Court still looked into the merits of this claim; however, it found that on the whole it failed because all the comments made by the prosecutor were fair.

Nevertheless, the Court agreed with the defendant’s contention that the prosecutor exceeded the bounds of propriety by cross-examining a defense witness regarding an uncharged crime that the defendant allegedly committed and by placing his credibility at issue in doing so. The Court held that in this case, the prosecutor strayed outside the four corners of evidence and the jury should be deciding a case solely on the evidence.

Despite this finding by the Court, it held that reversal was not warranted. This is because the Court found that the error had not substantially prejudiced the defendant’s trial. The dissenting judges pointed out that this very prosecutor had been admonished before on appeal. However, the admonishment had occurred after the trial in this case. The Court noted that although it strongly condemned the prosecutor’s conduct, it did not find it warranted reversal.

The defendant also contended that he was denied effective assistance of counsel due to the lack of objection to these prosecutorial errors. The Court rejected his claim.

The dissenting judges agreed with the majority that the defendant’s contention was valid, but they opined that the prosecutor did cause substantial prejudice to the defendant. Further, they stated that the prosecutor’s remarks during summation were inflammatory and prejudicial to the defendant. For these reasons, the dissenters wrote that they could conclude that absent such misconduct, the same result would have been reached. (JC/LC)

Criminal Contempt Conviction Upheld Even Without Order of Protection in Evidence

In People v. Simpson (App. Term 2d Dept. 11/29/2018), the defendant was charged with Stalking 4° for incidents that had occurred in 2011 and 2012 involving the girlfriend (the victim) of defendant’s husband. Defendant was also charged with Criminal Contempt 2° based on an incident that had occurred in October 2013, in which defendant had allegedly violated an order of protection in favor of the victim and against the defendant. After a jury trial, the defendant was convicted of Criminal Contempt 2°. The Appellate Term, Second Department, affirmed the defendant’s conviction, but the decision drew a dissent from Justice Brands.

At trial, the victim testified that in October 2013, she had been sitting in her car on the phone when the defendant approached her vehicle and asked the victim questions regarding her relationship with the defendant’s husband. The defendant then allegedly threatened the victim, telling her that “she would pay.” The victim filed a report with the police shortly after. After the People rested their case-in-chief, defense counsel unsuccessfully moved for a trial order of dismissal on the Stalking charge but also stated on the record that they could not in good-faith move to dismiss the Criminal Contempt 2º charge. Prior to summations, both parties stipulated that there was a valid order of protection in favor of the victim against the defendant at the time of the alleged incident. But a copy of the order of protection was not produced. Defendant was acquitted of the Stalking charge but convicted of Criminal Contempt 2°.

On appeal, Defendant contended that the People did not prove her guilty beyond a reasonable doubt of Criminal Contempt 2º because they failed to introduce into evidence the order of protection, and there was otherwise no proof of the conduct that it prohibited. The Court declined to review this, stating that Defendant’s claim was unpreserved when she failed to move to dismiss the charge at trial. Defendant also claimed on appeal the denial of effective assistance of counsel. Here, the Court held that the defendant was not denied effective assistance of counsel because defense counsel had extensively cross-examined the victim and brought out credibility issues that the jury took into account as well as getting an acquittal on the stalking charge.

Justice Brands would have reversed the conviction and ordered a new trial. As to the defendant’s first claim, Justice Brands agreed with the defendant’s contention that the People’s evidence was insufficient for a conviction on the criminal contempt charge. Even though it was stipulated into the record that there was a valid order of protection in place, the actual contents of the order of protection, namely delineating the type of order of protection and the conduct the defendant must refrain from doing, were not entered into the record. Without the contents of the order of protection, Justice Brands reasoned that there was no proof Defendant violated any of its terms. Because defense counsel did not move to dismiss the Criminal Contempt charge in the absence of an order of protection in evidence, Justice Brands stated that this alone would be enough to grant Defendant relief for ineffective assistance of counsel. Justice Brands stated that this case represents a “rare occasion” in which a single misstep by defense counsel can rise to the level of ineffective assistance. (MK/LC)