Searching Cell Phones: Confirmation to get the Warrant

In People v. Hackett (4th Dept. 11/9/2018), the Fourth Department analyzed a cell phone search under the 2014 Supreme Court decision Riley v. California to find that officers may send a confirmatory text message to a defendant’s cell phone when they have been in undercover communication with him to ensure they have the proper defendant. This confirmatory text may then be used to support a valid search warrant of the defendant’s cell phone. Continue reading

Failure to Timely File Criminal Leave Application Does Not Constitute Ineffective Assistance Under State Constitution

In People v. Grimes (Ct. App. 10/23/2018) (5-2), the Court of Appeals held that, under article I, section 6 of the New York State Constitution, a defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a criminal leave application. Judge Wilson authored a dissent, joined by Judge Rivera. Continue reading

Court of Appeals weighs in on definition of “serious injury”

What type of injury constitutes serious physical injury under New York’s Penal Law? This question of fact depends on the jury and, because of the legal sufficiency standard, Appellate Courts are hard-pressed to change decisions. In People v. Garland (Ct. App. 11/20/2018) (5-2), the defendant fired five shots at a crowd and hit a bystander in the leg. The medical records revealed that the bullet became stuck in the soft tissue near the victim’s femoral artery; the bullet was never removed from his leg because of the medical risks of doing so. Continue reading

Appeal Waivers

I have a piece in tomorrow’s New York Journal arguing that waivers of the right to appeal serve a valid and important purpose in the criminal justice system.  Here is an excerpt:

The settlement of a case signifies the end—not the beginning or continuation—of litigation. This is true in both civil litigation and criminal cases. By pleading guilty, the accused is conceding that the People have the requisite proof beyond a reasonable doubt and that a trial is unnecessary. Typically, the relinquishment of trial-based rights is given in exchange for some benefit at sentencing. The parties have reached a mutual agreement, and the case should end.

Appellate litigation is not without costs. The indigent defendant is entitled to a court-appointed lawyer, the People must assign an assistant to write and argue a brief, and the intermediate appellate court must take the time to hear and decide the case. Doing all of this in the context of where the parties have come together to reach an agreement is a waste of resources for all sides and the court.

And so, it is no wonder that district attorneys and some judges insist on appeal waivers as part of guilty pleas. But the choice to accept or reject such a waiver always remains with the defendant, a point the Court of Appeals emphasized in People v. Seaberg, 74 N.Y.2d 1, 8-9 (1989), when it upheld the constitutionality of appeal waivers. People v. Batista, 2018 N.Y. Slip Op. 7445 (2d Dept. Nov. 7, 2018), reminds plea courts that they must not conflate appeal waivers with the litany of rights that a defendant gives up by pleading guilty.

Thus, it is immaterial whether such waivers are asked for “across-the-board”; an individual defendant is always free to reject it.

At a time when our courts—particularly our intermediate appellate courts—are stretched thin (see Andrew Denney, “NY Appeals Judges Say Trial Courts Should Act to Quell Appeal Waiver Challenges,” N.Y.L.J., Nov. 9, 2018 (noting the delays in the overburdened Second Department)), precious judicial resources should be reserved for those cases where there are meritorious arguments in live cases, not ones where the parties have concluded that litigation should end. If the defendant in a particular case disagrees, he or she should reject any plea offer that contains an appeal waiver, proceed to trial, and, if convicted, litigate an appeal, as is his or her constitutional right.

 

The Importance of Jury Note Readings, as Shown by a Pro Se Defendant

In People v. Timmons (4th Dept. 10/5/18), the Fourth Department allowed for a reconstruction regarding whether the trial court did not provide adequate notice to defense counsel when it did not read out a jury note verbatim.

The defendant in this case was tried and convicted by a jury of Murder 2º.  He appealed to the Fourth Department, and it affirmed the conviction. However, the defendant filed a writ of error coram nobis, because he contended his appellate counsel failed to raise an issue on appeal that may have merit: a violation of CPL § 310.30 in regard to a note from the jury in its deliberations.

CPL 310.30 requires the jury to return to the courtroom after notice to both the People and counsel for the defendant and give instruction as the court deems proper. When there is a substantive note from the jury, the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury. This means actual, specific content of the jurors’ request must be disclosed. The Court of Appeals has held that a trial court’s failure to read a jury’s note verbatim deprives counsel of the opportunity to analyze accurately the jury’s deliberations and frame intelligent suggestions for the court’s response.

The defendant here contended that the trial court failed to read the note from the jury verbatim, and the transcript shows that instead in the reading both in front of and outside the presence of the jury, omitted to read the jury’s request to have a read back of the medical examiner’s testimony, and to have that testimony read first.

The People contended that it was the transcript that was in fact incorrect, and that the trial judge did read verbatim the jury note. They relied upon an affidavit from the court reporter that was submitted in response to the defendant’s writ. The affidavit stated that a stenographic error may have resulted in a transcript that did not accurately reflect whether the court read the entire content of the note verbatim in open court prior to responding to the jury.

The Fourth Department held that the alleged error in the transcript of the court’s on the record reading of the note was subject to a reconstruction hearing because the trial judge is the final arbiter of the record certified to the appellate courts. Therefore, the case was reversed and remitted to the County Court for the reconstruction hearing. (JC)