Tag Archives: Jamie Caponera

Preserve, Preserve, Preserve – And Don’t Threaten Eyewitnesses

In People v. Larregui (4th Dept. 9/28/18), the Fourth Department did not review many of the claims that the defendant raised based upon the fact that they were not preserved for review. The one issue the court did review revolved around the fact that a witness testifying about an event about a month following the robbery at issue.

In this case, the defendant was convicted by a jury of Robbery in both the First and Second Degree, and Assault in the Second Degree.  The case arose from an incident in which two women posing as prostitutes lured a victim into ambush by three masked men, who assaulted him, held a gun to his head and stole $200 cash.

The defendant in this case made several contentions that the court knocked down for lack of preservation: (1) that the evidence was legally insufficient to support a conviction because there was not corroborative evidence for the accomplice testimony; (2) the guilty verdict was repugnant because one of her accomplices was acquitted on all counts of the indictment; and (3) that prosecutorial misconduct deprived her of a fair trial inasmuch as she failed to object to any of the alleged improprieties.

The court noted that in order to preserve issues for review there must be objections “specifically directed at the alleged error.” Based upon the fact that there are so many issues that were dismissed on the basis that they were not preserved for review, it is clear that the Fourth Department values highly the notion of need to preserve issues for review. If an issue is not directly objected to, then it is not considered to be preserved for appellate purposes.  None of the issues were reversed in the interest of justice.

One issue that the court directly addressed was that the defendant objected to the trial court’s allowance of an eyewitness to testify regarding an incident that took place a month following the alleged robbery. The eyewitness testified that the defendant came to the eyewitness’s home, tried to break down the door, and threatened the eyewitness with violence for talking to the police. While the court does note that the defendant preserved the issue for review, it nevertheless rejected the defendant’s contention because evidence of threats made by the defendant against one of the People’s eyewitnesses, despite being prior bad acts, is admissible on the issue of consciousness of guilt. The Fourth Department noted that this was not an abuse of discretion because the probative value outweighed the prejudicial effect.  (JC/LC)

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

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

Missing Witness Testimony: Expanding the “Noncumulative” Rule to All Four Departments

It is well-established in New York that a party may request and receive a “missing witness” jury instruction—i.e., that the jury may draw an unfavorable inference if the opposing party fails to call a witness who presumably has evidence that would aid that opposing party. People v. Smith (4th Dept. 6/29/2018) brought harmony to the Appellate Division by bringing the Fourth Department’s standard for a missing witness charge into conforming with the other three Departments.

In this case, the defendant was convicted by a jury at the lower court of Attempted Murder 2º, Assault 1º, and Criminal Use of a Firearm 1º. The defendant claims that his trial attorney rendered ineffective assistance of counsel, which the Court dismissed quickly, as the court determined defense counsel used a legitimate trial strategy.

What was at issue in this case is the contention by the defendant that Supreme Court erred in denying his request for a missing witness charge. In the First, Second, and Third Departments it is well-settled that the proponent of such a charge has the initial burden of proving that the missing witness has noncumulative testimony to offer on behalf of the opposing party.

In this case, the Court joined its sister departments and held that “when seeking a missing witness instruction, the movant has the initial, prima facie burden of showing that the testimony of the uncalled witness would not be cumulative of the testimony already given. In other words, it is the movant’s burden to establish, prima facie, that the missing witness’s testimony would not be ‘consistent with the other witnesses.'” (quoting People v Rivera, 249 AD2d 141, 142 (1st Dep’t 1998)).

In this case, the defendant failed to meet his burden. He does not argue otherwise, but simply contended that the burden was not his. The court rejected this approach in its adoption of the law, and therefore, the defendant’s conviction was affirmed.

Two Justices dissented, reading the Court of Appeals decision in People v. Gonzalez differently. They stated that the burden begins with the party seeking the charge to show entitlement, then shifts to the opposing party to demonstrate the charge would not be appropriate. In their view, it is only then that the issue of whether the testimony is cumulative would arise. (JC)

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)