Tag Archives: Larry Cunningham

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

Rare AD2 Reversal for Factual Insufficiency

Under its factual review power, the Appellate Division sits as a “thirteenth juror” to determine whether the factfinder—the jury or, in a bench trial, the judge—was justified in finding the defendant guilty beyond a reasonable doubt.  This assessment does not permit the court to view the evidence in the light most favorable to the People, as is required in a legal sufficiency review.  Since the Court of Appeals can only review questions of law, “weight of the evidence” decisions cannot be reviewed by that higher court.

Recently, the Second Department reversed a conviction on weight of the evidence grounds—a rare move.  In People v. Herskovic (App. Div. 2d Dept. 10/10/2018), the court reversed the defendant’s conviction for Gang Assault 2º and related charges, which stemmed from a 2013 attack upon the victim by a group of 20 Hasidic Jewish men in Brooklyn. The victim was not able to identify the defendant as one of the attackers.  The victim and eyewitnesses also gave conflicting accounts of the attack.

The People relied principally on DNA recovered from the defendant’s sneaker, which one of the attackers had taken off of him and thrown on a roof.   However, the DNA sample was small (97.9 picograms, short of the 100.0 picograms needed for a traditional DNA analysis) and was a mixture of two or more individuals’ DNA.   A criminologist testified to a procedure that the Office of the Chief Medical Examiner had developed to analyze such small and mixed samples to determine a “likelihood ratio.”  However, even with these “tweaked” protocols, the court found the DNA evidence lacking:

The analysis also found that it was 133 times more likely that the DNA sample originated from the defendant and the complainant than from the complainant and an unknown unrelated person. The FST analysis of the DNA was based upon a Caucasian population, and failed to take into account the genetic history of the defendant, a member of the Hasidic population. Moreover, the likelihood ratio result was only 133, a relatively insubstantial number.

Based on the weak testimony and “less than convincing” DNA analysis, the court reversed on the facts.  As a result, the defendant may not be retried.  For more on this case, see this article from the New York Law Journal (subscription required).

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).

Kamins: New Criminal Justice Legislation

Barry Kamins has the first of two Law Journal articles about new legislation affecting New York’s criminal justice system.  In the first (subscription required), he provides a thorough overview of the new Commission on Prosecutorial Conduct, including some of the constitutional controversies over the new commission.  For those unfamiliar with the commission, the article is worth a read.

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