Nassau-Suffolk Academies of Law Criminal Law Update 2018-2019

Mineola, New York October 25, 2019

MARK D. COHEN JUDGE, NEW YORK STATE COURT OF CLAIMS, ACTING JUSTICE, NEW YORK STATE SUPREME COURT KENT V. MOSTON DIRECTOR OF TRAINING, SUFFOLK COUNTY LEGAL AID SOCIETY Nassau Suffolk Academies of Law Criminal Law Update 2018-2019

Table of Contents

Search and Seizure...... 1 Warrantless Searches...... 1 Parole Searches ...... 14 Suppression Motion Practice ...... 15 Standing ...... 16 Electronic Surveillance ...... 17 Search Warrants ...... 18 Darden Hearings ...... 20 Mapp-Dunaway ...... 20

Confessions ...... 21 Miranda...... 21 Voluntariness ...... 24 Spontaneous Statements ...... 26 Right to Counsel ...... 26 Self-Representation ...... 31 Ineffective Assistance ...... 33 Ineffective Assistance - Appellate Counsel ...... 37

Discovery/Rosario/Brady/Freedom of Information ...... 37 Discovery ...... 37 Brady ...... 38

Identifications ...... 39 Rodriguez Hearings ...... 42 Improper Bolstering ...... 42

Bail ...... 42

Grand Jury ...... 42 Dismissals ...... 42 Impairment of Integrity ...... 43 Re-Presentation of Charges ...... 44

Accusatory Instruments...... 45 Amendments to Indictments ...... 45

i Misdemeanor Complaints ...... 45 Duplicitous Pleadings ...... 46 Superior Court Informations ...... 46

Speedy Trial ...... 47

Statute of Limitations ...... 49

Guilty Pleas ...... 49 Immigration Consequences ...... 51 Issues Forfeited by Plea...... 54 Effective Assistance of Counsel ...... 54 Waivers of Appeal ...... 55 Judicial Involvement in Plea Negotiations ...... 56

Motions to Dismiss ...... 57 Interest of Justice ...... 57

Evidence...... 57 Confrontation ...... 59 State of Mind ...... 59 Excited Utterance ...... 60 Present Sense Impression ...... 61 Past Recollection Recorded ...... 61 Adoptive Admissions ...... 62 Molineux ...... 62 Sirois ...... 65 Rule of Completeness ...... 66 Best Evidence ...... 66 Authentication of Evidence ...... 67 Electronic Evidence - Social Media ...... 67 Gang Affiliation ...... 68 Experts ...... 68 Lay Opinion ...... 71 Right to Present Defense ...... 72

Trial Practices...... 72 Sandoval ...... 73 Right to Jury Trial ...... 73 Courtroom Closure ...... 74 Fitness to Proceed ...... 75 Access to Juror Information ...... 75 Jury Selection ...... 75

ii Anonymous Juries ...... 76 Right to be Present ...... 76 Challenges For Cause ...... 76 Peremptory Challenges ...... 78 Batson ...... 78 Witness Lists ...... 82 Arraignment on Special Information ...... 83 Late Notice of Intent to Introduce Psychiatric Evidence ...... 83 Excessive Questioning of Witnesses by Court ...... 84 Evidence of Gang Membership ...... 84 Cross-Examination of Witnesses...... 85 Calling Witness to Assert Fifth Amendment Privilege ...... 87 Right to Present a Defense ...... 87 Summations ...... 88 Instructions ...... 88 Justification ...... 89 Deliberations Error ...... 92 Discharge of Sworn Jurors ...... 93 Discharge of Sworn Juror During Deliberation Due to Jury Tampering ...... 93 Missing Witness Instruction ...... 94 Lesser Included Offenses ...... 94 Written Instructions ...... 96 Response to Jury Notes ...... 96 Announcement of Verdict ...... 99

Motions to Set Aside Verdicts ...... 99

Substantive Law ...... 101

Sentencing...... 109 Delay in Sentencing ...... 109 Consecutive Sentencing ...... 109 Enhanced Sentence Due to Violation of Plea Conditions ...... 110 Excessive Sentences ...... 110 Utilization of Sealed Testimony at Sentencing ...... 112 Prior Felony Offenders ...... 113 Solitary Confinement ...... 113 Fines ...... 114

Probation ...... 115 Probation Violations ...... 115

iii Sex Offenders ...... 116

Youthful Offenders ...... 117

Appeals ...... 117

Judicial Recusal ...... 119

Sex Offender Registration Act ...... 119

Motions to Vacate Judgments of Conviction ...... 120

Civil Confinement ...... 121

Sealing Records ...... 122

Civil Rights - Qualified Immunity ...... 122

Freedom of Information ...... 123

Double Jeopardy ...... 124

New Criminal Legislation 2019...... 124 Bail ...... 125 Speedy Trial ...... 149 Discovery ...... 155 Extreme Risk Protection Orders ...... 177 Miscellaneous Legislation ...... 186 Shock ...... 186 Forfeiture ...... 187

iv Nassau-Suffolk Academies of Law Criminal Law Update October 25, 2019 Mineola, New York

Selected Recent Cases and New Legislation OCTOBER 2018 - OCTOBER 2019

MARK D. COHEN JUDGE, NEW YORK STATE COURT OF CLAIMS, ACTING JUSTICE, NEW YORK STATE SUPREME COURT KENT V. MOSTON DIRECTOR OF TRAINING LEGAL AID SOCIETY OF SUFFOLK COUNTY

Warrantless Searches

People v. Nicholas Hill, 33 N.Y.3d 990, 2019 N.Y. Lexis 1255 (5/2/19) [7/0; Memorandum].

A team of NYPD police officers was assigned as part of a “conditions unit” to a housing development located at the former Polo Grounds in Manhattan, which area was known for “high crime” and for “violence and drugs.” As part of this operation, officers patrolled to determine whether people other than tenants and invited guests were present and were, therefore, trespassing. From a rooftop, police officers observed the defendant coming in and out a building several times, for short periods of time. An officer next observed the defendant enter a car near the building, move something around, and then exit seconds later. The defendant then left the area for a few minutes before returning to the front of the building. Two police officers exited their cars and approached the defendant stating, “[C]an I ask you a question?,” and the defendant, answered “What?” He looked nervous, was sweating and kept grabbing his groin area. The officers asked the defendant what he was doing in the building and whether he knew anyone there. The defendant responded that he was visiting his girlfriend at her apartment at the building. The officers asked the defendant for identification and he provided it. He also testified at the suppression hearing that he told the officers that he had keys to the building, and that if the officers wanted, they could escort him to the apartment he had visited. While the defendant waited nearby with several officers, after an officer told him to “stand right there,” a third officer

1 went to the apartment he claimed he had been visiting. The occupant denied knowing the defendant when she was shown his identification. A “short time” later, the officer returned and since his explanation was proven false, the defendant was arrested for criminal trespass. Narcotics were later found on his person. A majority of the First Department by a 4-1 vote, affirmed a lower court denial of suppression on the holding that the retention of the defendant’s identification did not constitute a “seizure” on the 4-tiered People v. DeBour, 40 N.Y.2d 210 (1976) criteria, and that in a trespass situation, the police may properly conduct a “brief” investigation” to ascertain whether the defendant’s explanation was credible and that in doing so, this did rise to a Level 3 detention that required reasonable suspicion [150 A.D.3d 627]. The Court of Appeals reversed and granted suppression on the holding that while the initial encounter with the defendant by the police was justified as a Level I DeBour encounter, the intrusion “thereafter rose beyond a level-one request for information,” and that as such, the motion to suppress should have been granted.

People v. Emmanuel Diaz, 33 N.Y.3d 92, 2019 N.Y. Lexis 266 (2/21/19) [5/2; Feinman, J.].

A correctional facility’s release to prosecutors or law enforcement agencies of recordings of non- privileged telephone calls made by pretrial detainees, who are notified that their calls will be monitored and recorded does not violate the Fourth Amendment’s proscription against unreasonable searches. In so ruling, the majority adhered to the Court of Appeals’ recent ruling in People v. Johnson, 27 N.Y.3d 199, 205-206 (2016) [which similarly held on both federal and state constitutional grounds], and in ruling that pre-trial detainees had no objectively reasonable expectation of pirvacy in such evidence, rejected the issue raised by the dissenter in the appellate division [see 149 A.D.3d 974 (2nd Dept. 2017) [Hall, J.], that to be admissible, such recordings had to be preceded by specific warnings to the inmate that the monitored phone recordings could be turned over to law enforcement. Judge Wilson, joined by Judge Rivera, dissented on the conclusion that both as a matter of Fourth Amendment law and policy the practice of recording such phone calls for “security purposes” and then turning them over to prosecutors should not be permitted. See Also, People v. Ali Cisse, 32 N.Y.3d 1198 (2/21/19) [7/0; Memorandum], decided the same day which reached a similar result with such jailhouse recordings held admissible on implied consent grounds.

People v. Gino D. Santiago/Christopher Soto, __ A.D,.3d __, 2019 N.Y. App. Div. 7061 (2nd Dept. 10/2/19).

On September 10, 2014, Christopher Soto was apprehended in Queens by New Jersey parole officers at the apartment of his aunt and of his cousin, the defendant Gino D. Santiago, for

2 violations of his New Jersey parole. The New Jersey parole officers permitted Soto to re-enter the apartment to retrieve shoes and items of clothing and, thereupon, conducted a protective sweep of the apartment. The New Jersey parole officers found Santiago in a bedroom. In addition, they discovered what they suspected to be heroin in a closet. The New Jersey parole officers notified the New York City Police Department (NYPD), and NYPD officers responded approximately half an hour later. In response to questioning without the benefit of Miranda warnings, Soto admitted that a safe found in the bedroom of the apartment belonged to him and that it contained two guns. Soto then signed a consent form and opened the safe at the NYPD officers' request. The NYPD officers seized two handguns, an extra magazine, and ammunition. Soto and Santiago were both arrested and charged with, inter alia, criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the second degree. The appellate division affirmed a lower court order that granted suppression of the items found in the safe on the holding that Soto had no standing to complain about the seizure of the heroin in the closet since he was merely a guest at the apartment, that he did have standing to contest the weapons and ammunition seized from the safe since he was its owner and thaton the merits, the purported consent to search the safe was not voluntary since it was obtained without Miranda warnings. In so ruling the second department rejected the People’s claim that the defendant’s parole status, which carried a condition of his New Jersey parole that he consented to searches by lawfully empowered parole officers applied since the search was conducted by New York police.

People v. Julio Garcia, __ A.D.3d __, 2019 NY Slip Op 06509 (2nd Dept. 9/11/19).

A Putnam County Sheriff’s investigator observed the defendant pull his vehicle into a parking spot without signaling and after approaching and asking the defendant for his license and registration, were presented with a conditional license, which allowed him to drive only to and from work. When asked about his destination, the defendant replied that he was going to a nearby bar to meet a girl. The defendant was directed to step out of the car, at which time the investigator observed in plain view, the corner of a small clear plastic bag containing a white powder, and a plastic straw “that had been cut to a shorter length,” protruding from the front right pocket of the defendant’s jeans. Believing the white powder to be cocaine and the plastic straw to be drug paraphernalia, the defendant was placed under arrest and the vehicle was searched for additional contraband. None was found there, but the investigator opened the trunk of the vehicle [the defendant then stated, “I don’t think you can check back there”], and subsequently found a semi-automatic pistol inside a child’s booster seat. The defendant accused the investigator of “put[ting] it there,” and a more thorough search of the truck resulted in the seizure of additional plastic bags containing more cocaine and other illegal drugs. A lower court order granting suppression of the evidence seized in the truck was affirmed on a People’s appeal, and the defendant’s statements in relation thereto was affirmed on the holding that the recovery of a

3 small quantity of cocaine from the defendant’s person was insufficient to give the police probable cause to believe that additional contraband would be found in the trunk, especially where nothing was found in the passenger compartment of the vehicle. In essence, the automobile exception was not expansive enough on these facts to permit the search of the trunk.

People v. Jeffrey J. Grimes, 175 A.D.3d 712 (2nd Dept. 8/28/19).

NYPD officers responded to the defendant’s Queens home in part, based on information provided by an informant that the defendant was selling drugs out of his home and that he kept a firearm in a distinctive backpack. When the police arrived they observed the defendant smoking marijauna on his porch. As the police approached, they identified themselves. The defendant then grabbed a distinctive backpack matching the description provided by the informant, curse out loud and run into the house. The officers pursued the defendant, who dropped the backpack inside the front doorway of the house as he ran up the stairs to the second floor. The defendant was apprehended on the stairs. After he was secured, one of the officers opened the backpack and found a firearm and a quantity of marijuana. The second department reversed a lower court order that denied suppression on the holding that there was an insufficient proof of exigency in the record required to search the backpack as a container without a warrant under People v. Jimenez, 22 N.Y.3d 717, 719 (2014) and its progeny.

People v. Willie Harris, 174 A.D.3d 185, 2019 NY Slip Op 05099 (1st Dept. 6/25/19), N.Y.L.J. 6/27/19 @ p. 22.

A majority of the first department held 3-2 that the trial court properly denied the defendant’s motion to suppress a warrantless search of a closed container, a suitcase as a search incident to arrest. Thus, two NYSP officers were patrolling on foot in Manhattan following reports of larcenies in the area and noticed the defendant and his co-defendant on the corner of 75th Street and Lexington Avenue as they were holding a large, green rolling suitcase while the co-defendant was putting “something’ into it, The officers thereafter watched the two walk into several clothing stores and as they exited, they placed several items from each store into a “booster bag,”

4 [a box wrapped in a black plastic bag” with a “hollow bottom”] and then removed them and placed them into the suitcase. When the police approached, the defendant immediately let go of the suitcase he was holding and resisted arrest. Both men were handcuffed and after a knife was recovered from bot the the defendant’s rear pocket, and the co-defendant, one of the officers quickly opened up the suitcase and “saw a lot of clothes inside.” The two men were then transported to the precinct. The suitcase was later searched at the station without a warrant. The majority held that on the record, where the closed container was with within the defendant’s “grabbable area,” and conducted contemporaneously consistent with the exigent circumstances present at the arrest, it was proper notwithstanding the fact that the defendant had been handcuffed and that the police did not testify at the suppression hearing to fearing a risk posed by the defendant or his accomplice. Justice Renwick, joined by Justice Gische, dissented on the conclusion that on the facts presented at the suppression hearing, with the defendant and co- defendant safely secured by the police, under People v. Jimenez, 22 N.Y.3d 717, 719 (2014), [which held that absent exigency, a search of a closed container is not permitted under New York constitutional law], suppression was required.

People v. Paris Brown, 172 A.D.3d 41, 2019 N.Y. App. Div. 3285 (1st Dept. 4/30/19) (Manzanet-Daniels, J.), N.Y.L.J. 5/2/19 @ p. 22 & 5/6/19 @ p. 28.

An anonymous tip that a “black man, wearing black coat with a fur hood” had a gun in a Bronx bodega permitted the police when they arrived a minute later to make a DeBour Level 2 common law inquiry, and confirm with the bodega employees that everything was “okay” However, the level of proof was not was not thereafter enhanced to authorize a Terry frisk of the defendant notwithstanding that he fit the description on the radio call and that he, tried to exit the store with his hand inside his jacket. As such, and relying on Florida v. J.L. 529 U.S. 266 (2000), a weapon that was seized was ordered suppressed on the conclusion that the uncorroborated tip had in sufficient predictive indicia.

People v. Edward L. Stevens, __ A.D.3d __, 2019 NY Slip Op 02912 (2nd Dept. 4/17/19).

The trial court properly denied suppression of a gun found on the defendant’s person following a police stop based on a tip from a civilian that a “black male, bushy beard and ‘dreads,” wearing a black trench coat had a firearm, which thereafter was followed by police observation of a person

5 fitting that description in the street, which in turn provided founded suspicion to inquire. When the police thereafter observed the defendant move his hand to has waist band and then flee, this provided reasonable suspicion to pursue. In so ruling, the appellate division rejected the defendant’s contention that Aguilar-Spinelli applied, where was a sufficient basis to stop and then pursue under People v Agiris, 99 A.D.3d 808 (2nd Dept. 2012), aff’ed 24 N.Y.3d 1138 (2014).

People v. Rashid Bilal, 170 A.D.3d 83 (1st Dept. 3/7/19).

Anti-crime NYPD officers were patrolling in upper Manhattan at about 9:20 pm in December when they received a radio report that shots had just been fired, that a man had been shot and that there perpetrators was a black man wearing a black jacket. The officers proceeded to the Dunbar Houses, located at 149th Street and Seventh Avenue and knew that it was possible to cut through this development to get to a nearby subway station to escape. When the officers arrived at this location a few minutes later they saw two black men walking out of the entrance of one of the Dunbar Houses buildings. One was wearing a black bubble jacket while the other, who was taller than the first, was wearing a gray jacket. The police decided to stop the two men because they were believed to be coming from the area of the shots fired and surmised they could have witnessed the crime or were victims. The police exited their car and one, a lieutenant said, “Hey buddy ... come here.’ The man in the black jacket stopped while the second man, the defendant began running. While the lieutenant stayed with the man in the black jacket, the other officer drove the police car with the siren on to cut off the defendant. The defendant ultimately ran in from the police car, then underneath a scaffolding at a construction site where he threw something black over a fence. The officer continued to chase the defendant and caught him shortly thereafter where he (the defendant) was apprehended. Police officers went into the construction site and saw a gun lying on the ground where it was recovered. A majority of the first department reversed a supreme court ruling that denied suppression and held by a 3-2 vote that the while the police may have had an objective credible reason to approach the two men, and request information - based on information received from the radio report and their own observations of the defendant and his companion, these circumstances did not justify the police pursuit, which required reasonable suspicion under People v. Martinez, 80 N.Y.2d 444, 447 (1992) and its progeny, especially where the description of the perpetrators was “extremely vague [and] generic.” Justice Richter, and Justice Tom dissented in separate opinions on their determination that the defendant’s reaction of running from the police by evasive actions of running under a scaffold, climbing a fence, throwing a gun over the fence of a locked construction site then coming back down the fence and continuing to run was not a “spontaneous reaction” to a “sudden and unexpected confrontation with the police, but was a considered and calculated effort to escape and then to rid himself of incriminating evidence, and as such was

6 attenuated from the allegedly unjustified police stop. Justice Tom further would have held that the police pursuit was proper in the first place based on the information available to the police. Leave to appeal to the Court of Appeals was granted by Justice Tom on May 4, 2019.

People v. Robert J. Hinshaw, 170 A.D.3d 1680 (4th Dept. 3/22/19).

A majority of the fourth department held 3-2 by Memorandum decision that State Trooper properly stopped the defendant’s vehicle based on his check of a Department of Motor Vehicles [DMV] computer records for the car’s license plate, which revealed that the car would have been located in an impound yard. As the Trooper testified at a suppression hearing, where he believed he was required to conduct an investigation - i.e., stop the vehicle to determine whether the car had any registration problems, whether the license plates were or the insurance was suspended, of if the car was stolen, this provided reasonable suspicion to stop the car for an investigative stop, which resulted in the recovery of a weapon. Two dissenters, Justices Whalen and Centra, would have reversed on their conclusion that the Trooper’s interpretation of the DMV computer information did not provide the requisite reasonable suspicion to stop the vehicle, especially where the likelihood that it was stolen from an impound yard was “very low,” such that the officer could not have held an objectively reasonable belief that a crime had occurred. Leave to appeal to the Court of Appeals was granted by Justice Whalen on June 4, 2019.

People v. Limma Page, 166 A.D.3d 1472 (4th Dept. 11/9/18).

The stop of the defendant’s vehicle by a marine interdiction agent with the U.S. Customs and Border Protection Air and Marine Operations, who was also a deputized task force officer with the Niagara County Sheriff’s Department, after the agent observed the vehicle engaging in dangerous maneuvers and allegedly committing several traffic violations was unlawful and thus, was not authorized as a citizen’s arrest. As such a lower court order that suppressed a firearm and ammunition that was thereafter seized by Buffalo City Police Officers from the vehicle who responded to the scene from the vehicle was affirmed. In so ruling, the appellate division rejected the People’s appeal on the conclusion that the Marine interdiction agent’s actions of displaying light emergency lights affixed to his truck to effectuate the stop caused the defendant-driver to

7 submit to his position under color of authority as a law enforcement officer and was not the action of a private citizen under C.P.L. 140.30(1)(b). The Court of Appeals has granted leave to appeal.

People v. Andre Floyd, 171 A.D.3d 787, 2019 App. Div. Lexis 2566, 2019 NY Slip Op 02546 (2nd Dept. 4/3/19).

While there was sufficient evidence to support the defendant’s intentional murder conviction arising out of his having fired twice on a Bronx street with a .357 revolver at a victim, who later died and at a surviving victim five times, including in the back, the lower court erred in denying the defendant’s motion to suppress the weapon on the determination that there was insufficient reasonable suspicion to stop the defendant’s vehicle, a U-Haul truck, based on an anonymous tip of a “possible larceny burglary involving four to five males ‘suspiciously’ going in an out of the [truck].” As the court noted, quoting Navarette v. California, 572 U.S. 393, 401 (2014), “[e]ven a reliable tip will justify an investigative stop only if it creates reasonable suspicion that criminal activity may be afoot,” and thus, where the tip was consistent with “ordinary use of a U-Haul; truck and moreover, lacked predictive information,” the ultimate seizure of the weapon was unlawful and the defendant’s conviction was reversed.

People v. Elkins Worrell, __ A.D.3d __, 2019 App. Div. Lexis 2111, 2019 NY Slip Op 02127 (2nd Dept. 3/20/19).

The defendant was indicted for, among other crimes, promoting sexual performance by a child based on evidence obtained from a computer seized from his home during the execution of a search warrant. An NYPD detective alleged in his affidavit in support of the search warrant that he had used certain software to search “peer-to-peer file sharing [P2P] networks and ultimately identified an Internet Protocol address registered to the defendant’s home as having charged files that depicted child pornography. The defendant’s motion to controvert the search warrant on the ground that the detective’s act of searching for and downloading files from the defendant’s

8 computer using a P2P network was summarily denied by the trial court and the defendant then pleaded guilty with a waiver of a right to appeal. Upon concluding that the waiver was invalid, the appellate division remitted the case for a hearing and a new determination. Following the hearing in the Queens Supreme Court, the court found and the appellate division affirmed that the People demonstrated that the defendant had no reasonable expectation of privacy in the downloaded files where they demonstrated through testimony regarding the functioning of P2P networks and P2P software, that the files searched and downloaded from the defendant’s computer were accessible to anyone who had downloaded P2P software for free off the Internet. As the appellate court noted in affirming, “[d]espite any subjective expectation that the defendant may have had regarding the privacy of his files, an individual does not have an objectively reasonable expectation of privacy in computer files stored in such a broadly accessible manner on a network, the very purpose of which is to permit such sharing of files between users.” See United States v. Borowy, 595 F.3d 1045 (9th Cir.2010) relied on by the court, aside from other federal circuit court rulings noted in the opinion, for similar holdings.

People v. Jesus Perez, __ A.D.3d __, 2019 NY Slip Op 01822 (1st Dept. 3/14/19)

Notwithstanding the hearing court’s determination that the police detention of the defendant was supported by reasonable suspicion, the record supported the conclusion that probable cause did not exist until the undercover officer who allegedly bought drugs from the defendant made an identification. Because the record further provided no reason for the officers to have concluded that the defendant, the suspect in the street drug sale, was armed and dangerous, likely to resist arrest or flee, handcuffing him was inconsistent with an investigatory detention and elevated the intrusion to an arrest without probable cause. As such, the undercover officer’s identification of the defendant and the buy money recovered as a result of the unlawful arrest should have been suppressed, with a new trial ordered preceded by an independent source hearing.

People v. Ramel Smith, __ A.D.3d __, 2019 NY Slip Op 00314 (2nd Dept. 1/16/19), N.Y.L.J. 1/18/19 @ p. 24..

Police officers had a founded suspicion that criminal activity was afoot, triggering a common law right of inquiry, based upon their observations of the defendant and a companion huddled together on a Queens street in close proximity to a recent shooting with no one in the vicinity and the defendant’s hand in his pocket. The level of suspicion elevated to reasonable suspicion when

9 the defendant and his companion started walking away at a high rate of speed when the officers, who had returned to the scene of the shooting, turned their vehicle back onto the street where the defendant and his companion were standing and the police then observed the defendant toss and item into an alley way, while walking away. Once the police temporarily detained the defendant, they had probable cause to arrest him when they ascertained that the thrown object was a gun. As such, the defendant’s suppression motion was properly denied.

People v. Jean Moise, __ A.D.3d __, 2018 NY Slip Op 06977 (2nd Dept. 10/18/18).

Although the description of the defendant in a Manhattan robbery case was general, and he had been described as riding on a bicycle, but was no longer doing so when the police observed him, the police nonetheless had reasonable suspicion for the stop based on a combination of factors where the encountered the defendant in “very close spatial and temporal proximity to the crime, and he behaved suspiciously by first running in apparent flight, then suddenly entering and standing idly in a store, and then walking out and taking off a shirt that figured in the description of the suspect. In affirming the first department also held that even if the officer’s taking of the shirt from the defendant’s hand was an improper seizure, the any error in denying suppression was harmless since, among other things, the victim, identified the defendant in a show-up.

People v. Dylan Flynn, 165 A.D.3d 973, 2018 NY Slip Op 06935 (10/17/18).

The lower court properly denied the defendant’s motion to suppress certain text message and video evidence derived from the defendant’s cell phone as part of a Naval Criminal Investigation Service {NCIS] Command Authorization for Search and Seizure [CASS], and consent to search [in this case a Permissive Authorization for Search and Seizure (PASS)], based in a supporting affidavit that there was probable cause that the defendant violated provisions of the Uniform Code of Military Justice while he was in the navy. The video evidence reflected that the defendant had engaged in the sexual assault of an unconscious woman while in Suffolk County. In affirming, the appellate division held that there was probable cause to seize the defendant’s cell phone and that the defendant voluntarily consented to the search of this instrument by

10 military law enforcement and that consent was not the product of coercion or mere acquiescence to authority.

People v. Castillo, __ Misc.3d __, 2018 NYLJ 3860 (Kings Co. 11/16/18), N.Y.L.J. 11/23/18 @ p. 23.

Following a traffic violation stop of a taxi in Brooklyn, the passenger in the rear compartment was observed by police covering a “large bulge on his inner thigh,” and then asked to step outside of the vehicle since it was believed to be a weapon. After an officer frisked this person, and determined that it was not a weapon because it felt “spongy,” he asked the defendant what was inside his pants. The defendant responded “it was just marijuana.” The defendant then reached into his pants and ripped a bag contained therein open, causing a brown powdery substance later identified as heroin to be released in the air and in so doing, covered himself with it. The defendant was arrested and a search incident to arrest also produced a bag of cocaine. When the defendant was transported to the police precinct for processing, he asked an officer what he was being arrested for? The officer responded “for possession of cocaine.” The defendant, without more then stated, “”It wasn’t pure. It was just cut.” and added, that it was not his, that he doesn’t sell it, that he was just “the middle man and that he picks it up from a guy down on Essex.” The court held (on the People’s concession regarding the stop), that the stop was pretextual, but that pursuant to People v. Robinson, 97 N.Y.2sd 341 (2001), it was valid traffic stop, that the seizure of the cocaine and later the heroin was proper pursuant to People v. Rosario, 245 A.D.3d 470 (2nd Dept. 1997), the defendant produced the cocaine to the police officer voluntarily, that the defendant’s statements at the scene were not made in response to any interrogation and finally, that the defendant volunteered statements in response to proper pedigree questions at the police station.

Gerald Mitchell v. Wisconsin, __ U.S. __, 139 S.Ct. 2525 (6/27/19) [5/4 Plurality; Alito, J.].

A plurality of the Court held 5-4, Per Alito, J., joined by the Chief Justice and Justices Breyer and Kavanaugh, held that where the driver in a driving while intoxicated case is unconscious, the exigent circumstances rule “almost always” permits a blood test without a warrant. There, where Wisconsin’s “implied consent” law (operative in 49 States and the District of Columbia], deems drivers to have consented to a blood test if an officer has reason to believe he or she has

11 committed certain alcohol or drug-related offenses with a specific statute applicable to unconscious drivers, the taking of blood without a warrant was proper. Thus, where a driver was reported to have been driving drunk in a a van in Sheboygan was located on foot [he was found wandering near a lake], and given a preliminary breath with a blood alcohol level result of .24%, and then following arrest, his condition deteriorated such that he had to be transported to a hospital, the police request to hospital staff to draw blood with a result of .222%, which later was admitted at trial was held proper. By so ruling, the plurality clarified the issue raised regarding exigency by the concurring opinion of Chief Justice Roberts in Missouri v. McNeely, 569 U.S. 141, 170 (2013), and Schmerber v. California, 384 U.S. 757 (1966), on the conclusion that the Fourth Amendment permitted this search due to the “compelling need” policy interests of public safety and on the dissipation of blood alcohol to the extent that prompt testing, based on a special need where there was no time to obtain a warrant was permissible. The case, however, was remanded to permit the defendant an opportunity to demonstrate that there was no exigency. Justice Thomas concurred on his conclusion that there was a per se special need of exigency in the circumstances in which the police have probable cause to suspect an unconscious driver of driving while drunk. Justice Sotomayor, joined by Justice Kagan, dissented on the determination that applying the rule of necessity to unconscious drivers suspected of operating a motor vehicle while intoxicated was not necessary to enforce the law under the Fourth Amendment. Note that New York’s statute, V.T.L. 1194 would permit the taking of blood of an unconscious driver suspected of driving while intoxicated in similar circumstances without a warrant. See People v. Kates, 53 N.Y.2d 591 (1981).

Kansas v. Charles Glover, __ U.S. __, 2019 WL 1428943 (4/1/19).

The Supreme Court granted certiorari in a case in which the Kansas Supreme Court [308 Kan. 590 (2018)] held that a police officer lacked reasonable suspicion to stop a vehicle in which the defendant was driving for a traffic violation solely on the “assumption” and without further confirmation that the unidentified driver actually was the owner of the vehicle and was driving with a revoked license. The Kansas Supreme Court reversed an order of the Kansas Court of Appeals, which in turn reversed a trial court order that originally held that the stop was unlawful.

Allison Patricia Taylor v. City of Saginaw, __ F.3d __, 2019 WL 175953 (6th Cir. 4/22/19).

12 The sixth circuit held that a city law enforcement officer’s use of chalk to mark the tires of parked vehicles to track how long they have been parked and if beyond the time limit, issue a citation was a warrantless “search” under the fourth amendment where there was a reasonable expectation of privacy to be free from such “common practice,” under Katz v. United States, 389 U.S. 347 (1967) and United States v. Jones, 565 U.S. 400 (2012). As such the court reversed a district court order that dismissed the plaintiff’s 42 U.S.C. 1983 lawsuit which followed the issuance of parking citations and reinstated the action on a holding that the automobile exception to the warrant requirement under the fourth amendment did not apply, that the community caretaker exception did not apply and where the search could not be held reasonable on a reduced expectation of privacy theory in an automobile.

United States v. Bekim Fiseku, 915 F.3d 863, 2018 U.S. App. Lexis 35281 (2nd Cir. 10/18/18).

A Bedford, New York police officer observed a man sitting in a parked near a vacant home in a rural area of Westchester about 1:00 a.m. This person told the officer that he had been visiting a friend, that he had transmission trouble and that he was waiting for another friend to arrive with a tow-truck from Brooklyn. The officer left but about five minutes later observed the same car driving on a nearby street. The officer became concerned that the operator was casing the neighborhood for an opportune burglary. The officer followed the car to a nearby park and ride and observed the same man speaking with two other men, one of whom was the defendant in or near a second parked car. The officer radio’ed for back-up. As additional officers responded, the first officer approached the parked car and asked the two other men to exit the car and patted them down. Nothing was found. The defendant was also frisked with similar results. The police then handcuffed all three for “officer safety” but did not draw their guns and explained to the three that they were not under arrest, but that they were being “detained” while the officers investigated their suspicious activity. The men were separated and provided inconsistent stories. The driver of the parked car was then asked if there was “anything in the vehicle that shouldn’t be there? The driver indicated that there was not and indicated that the police could “look.” A subsequent search of the car resulted in the discovery of false police badges, walkie-talkies, a stun gun, a bb gun reconfigured to replicate a Colt .45 pistol, a blank pistol reconfigured to replicate a .22 pistol, gloves, a screw driver and duct tape. The circuit court affirmed a district court denial of suppression on the holding that the “unusual circumstances” of the defendant’s apprehension justified the use of handcuffs and that their implementation did not improperly result in a de facto arrest without probable cause in an investigatory stop. In so ruling, the court also held that the police had sufficient reasonable suspicion to engage in an investigatory stop and that the use of the handcuffs was proper as a safety measure in Terry stop during an unfolding situation in a remote location. The case, which represents a continuing split in the

13 circuits, is discussed in M Flumenbaum & B. Karp, “Court Shifts on Effect of Using Handcuffs During Police Encounter,” N.Y.L.J. 1/30/19 @ p. 3.

In re Search of a Residence in Oakland, 354 F. Supp. 3d 1010 (N.D. Cal. 1/10/19).

The court held that while the Government presented sufficient probable cause to issue a search warrant to search a certain home in connection with an extortion investigation and seize, among other items, cell phones, there was insufficient probable cause to compel the owner of the cell phones to provide a biometric such a thumb print that might be required to unlock any phone seized. In so ruling the district court observed, citing United States v. Kyllo, 533 U.S. 27, 34, 36 (2001), that a citizen’s rights do not diminish with the increase in technology, that citizens do not waive their civil rights or indeed their privacy when using new technology, that the compelled use of biometrics is testimonial in nature and that the so-called “foregone conclusion doctrine” [see In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011 670 F.3d 1335 (11th Cir. 2012)], by which the Government might show that there is no testimony at issue, was inapplicable. Compare, In re Search of [Redacted], 317 F. Supp. 3d 534 (D.D.C. 6/26/18), in which the D.C. District court, several months earlier reached a different conclusion on similar facts. The cases are discussed in E.T. Barr, “Compelled Use of Biometric Identifiers to Unlock Electronic Devices,” N.Y.L.J. 6/25/19 @ p. 4. See also, Matter of The Search of a White Google Pixel 3 XL Cellphone in Black Incipio Case, 2019 WL 3401990 ((D.Idaho 7/27/19) for a similar ruling in a case in which the Government’s application to place a suspect’s finger on acellphone to unlock it as part of a search warrant application was held proper on the holding that the act was not testimonial.

Parole Searches

People v. Frederick Jennings, 174 A.D.3d 478, 2019 NY Slip Op 05838 (1st Dept. 7/30/19).

The defendant was charged with weapons possession. At a suppression hearing a parole officer testified that the defendant had been placed on parole following his second degree robbery

14 conviction and sentence and thereafter signed a certificate of post-release supervision that among other things indicated that he understood that “[his] person, residence and property are subject to search and inspection by parole officers,” and that he agreed to permit his parole officer to visit him at his residence and to “search and inspect his person, property and residence.” The officer further related that after the defendant violated his parole by failing to report, using marijuana, failing to attend a drug treatment program and violating curfew, she obtained a parole absconder warrant authorizing her to take the defendant into custody. Whey she and other parole officers knocked on the door, the defendant’s mother let them in but told them that the defendant was not home. The officers searched the defendant’s Manhattan apartment and while they found four men in a bedroom and noticed a strong smell of marijuana, the defendant was apparently not present. The officers asked the four men to leave the room and they complied. The officers then searched a “big” closet because it was a “good hiding place,” and because experience had taught them that parolees “often hid in apartment to avoid apprehension.” Several officers searched the closet and while they were separating clothes on hangers to see if the defendant was hiding there, the testifying parole officer felt a “heavy object” in the right outside waist pocket of a goose jacket. The officer knew the jacket belonged to the defendant because she had seen him wear it in the past and beleived the object to be a weapon. The officer conferred with a colleague who also verified that he thought that was so. The other officer opened the jacket’s pocket and then observed a plastic bag; when they opened the bag, they saw a handgun. The police were contacted and a search warrant was obtained for the weapon. The first department reversed a lower court order that granted suppression on a People’s appeal and held that the search was substantially related to the duties of a parole officer under People v. Huntley, 43 N.Y.2d 175, 181 (1977) and thus that the parole officer lawfully retrieved the firearm from the defendant’s jacket pocket.

People v. Kevin L. Purnell, __ A.D.3d __, 2018 NY Slip Op 07759 (2nd Dept. 11/14/18).

A condition of the defendant’s parole was that a parole officer could search his residence at any time. During regular visits to the defendant’s apartment in April 2014, his parole officer noticed that the defendant had recently acquired a pit bull, a new television, and thus, became suspicious of how the defendant could afford these items. officer. At or about this time, the parole officer was informed by a a police detective that the police department had arrested someone who informed them that the defendant possessed a gun. Following the approval of the parole officer’s supervisor on May 29, 2014, a search was conducted of the defendant’s apartment, by the defendant’s parole officer, other parole officers and two police detectives. The search uncovered a white plastic bag filled with what appeared to be crack and heroin, along with $1,2000 in cash and five cell phones. The appellate division affirmed a lower court denial of suppression on the

15 holding that the search by the defendant’s parole officer was rationally and reasonably related to the performance of her duties.

Suppression Motion Practice

People v. Jamel Ethridge, __ A.D.3d __, 2019 NY Slip Op 06162 (2nd Dept. 8/21/19).

The trial court properly denied the defendant’s motion to suppress a gun that was recovered from a car after a suppression hearing where the defendant abandoned the vehicle after crashing it into several parked cars, and fled the scene of the accident, leaving the driver’s side door open and the keys in tjhe ignition, thereby undermining any claim that he may have had to an expectation of privacy in the vehicle or its contents.

Standing

People v. Delesley Dessasau, __ A.D.3d __, 2019 NY Slip Op 00456 (2nd Dept. 1/23/19), N.Y,.L.J. 1/25/19 @ p. 25.

The trial court erred in ruling, sua sponte, following a hearing, that the defendant lacked standing to challenge the search of his minivan where the defendant’s statement to the police, that the van was his work van was without contradiction from the People, and thus sufficient to establish that he exercised dominion and control over the vehicle to demonstrate his own legitimate expectation of privacy. The second department further noted that where the defendant had been removed from the minivan, and no one else was in the vehicle, the police lacked probable cause to conduct a warrantless search by opening the sliding door of the minivan and that therefore a weapon found as a result should have been suppressed.

16 People v. Willis Febo, 167 A.D.3d 451, 2018 NY Slip Op 8364 (1st Dept. 12/6/18).

The defendant’s motion to suppress was properly denied on a holding that the defendant lacked standing to challenge the search of a backpack that contained a revolver and ammunition due to a lack of a reasonable expectation of privacy in a case in which as the police lawfully approached him, the defendant opened the front passenger door of a driver-occupied car, threw the backpack inside and closed the door. In affirming the appellate division held that the defendant did not meet his burden of proof with respect to standing since he failed to establish any connection with the car and could not reasonably expect that the driver and others would not have access to the bag. Additionally, the court noted that the driver’s failure to react negatively to the deposit of the bag implied some sort of bailment as speculative and in any event, would not establish reasonable expectation of privacy.

People v. Paul Moore, 61 Misc.3d 868, NYLJ LEXIS 3520 (Sup. Ct. Kings Co. 10/24/18), N.Y.L.J. 10/29/18 @ p. 21.

The defendant was arrested in 2017 at about 1:00 a.m..for weapons possession following an NYPD police pursuit in Brooklyn. He was brought to a precinct interrogation room and after first declining to be interviewed about the weapon at about 12:30 p.m. later that day, asked to provide information in a”proffer” regarding firearms and during questioning smoked a cigarette. When he indicated that he could not “snitch,” the questioning ended and the defendant was escorted out of the room for arrest processing. He left the cigarette in an ashtray. The cigarette was retrieved by the detective and sent to the New York City Office of the Medical Examiner for DNA analysis. A DNA profile was generated and this was uploaded into the DNA State CODIS system. The profile resulted in a “hit” for an unsolved 2015 Brooklyn rape. The defendant was arrested for this crime. In the meantime the defendant contested and was successful in litigating the propriety of his weapons possession arrest with a suppression court ruling that the police improperly chased the defendant on less than probable cause. On the defendant’s motion to suppress the results of the DNA testing that resulted in his arrest for the 2015 rape, the court held that the defendant had no reasonable expectation of privacy in and moreover, abandoned the cigarette at the precinct under People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108 (1996), and thus had no standing to contest its seizure by the police. Additionally, the court rejected the defendant’s claim that the seizure of the cigarette was the fruit of the poisonous tree due to his illegal arrest on the

17 weapons charge on the holding that the cigarette seizure was sufficiently attenuate eleven and a half hours from the initial illegality involving the firearm. Finally, the court also denied the defendant’s application to suppress his “identity” in the rape case as the fruit of the poisonous tree since this evidence is not so unique that it could not be obtained by other means.

Electronic Surveillance

People v. Tayquan R. Clark, 171 A.D.3d 942, 2019 App. Div. Lexis 2722, 2019 NY Slip Op 02719 (2nd Dept. 4/10/19).

The court order authorizing the acquisition of cell site location information was the result of an express finding of probable cause that was supported by the People’s evidentiary showing. Thus, the order was “effectively a warrant,” and thus complied with the requirement of Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206 (2018). See also People v. Sorrentino, 93 A.D.3d 450, 451 (1st Dept. 2012); People v. Cutts, 62 Misc.3d 411, 415 (Sup. Ct. N.Y. Co. 2018) and People v. Simpson, 62 Misc.3d 374, 390 ( Sup. Ct. N.Y. Co. 2018), also relied on by the court. Compare, People v. Warren Taylor, __ A.D.3d __, 2019 NY Slip Op 03823 (2nd Dept. 5/15/19) [With no express finding of probable case order authorizing acquisition of cell-site information insufficient under Carpenter].

People v. Ira Gross, __ A.D.3d __ (2nd Dept. 1/23/19), N.Y.L.J. 1/25/19 @ p. 24.

Since an original recording of the defendant’s wiretapped conversations was properly sealed and preserved in according with the statute, it was not error for the trial court to have admitted into evidence a compilation of the recording that was otherwise properly authenticated. The sufficiency of proof in the defendant’s larceny and related crimes prosecution in connection with a prescription drug conspiracy is discussed below.

18 Search Warrants

People v. Reginald Goldman, 171 A.D.3d 581 (1st Dept. 4/23/19).

While in general, search warrant applications are made ex parte, special rules apply to evidence taken from a suspect’s body, such as DNA samples. As such, even though defense counsel was notified of the application, filed pre-accusatory by the People to obtain the defendant’s DNA because the attorney represented the defendant on unrelated charges, the court erroneously excluded defense counsel on the question of whether there was probable cause for the issuance of an order under Matter of Abe A., 56 N.Y.2d 288 (1982) in a Bronx homicide investigation, and as such ordered suppression. Thus, the appellate division determined that not only was the defendant entitled to notice in such a circumstance, but also entitled to be hear as an “elementary tent of due process,” and thus rejected the People’s claims that the defendant received required notice in a “bifurcated” proceeding to determine whether to issue the search warrant. The Court of Appeals granted leave to Appeals per Judge Fahey on June 18, 2019.

People v. Toyan Grose, __ A.D.3d __, 2019 NY Slip Op 03808 (2nd Dept. 5/15/19).

There is no requirement that a judge disqualify himself/herself on a motion to controvert a search warrant signed by that judge since absent a legal disqualification under Judiciary Law 14, a judge is the sole arbiter of the need for recusal and his ir her decision is a matter of discretion and personal conscience. See People v. Novak, 30 N.Y.3d 222, 227 (2017); and People v. McCann, 85 N.Y.2d 951, 952-953 (1995), relied on by the court. A second issue relating to the right to present a defense and motive to fabricate is discussed below.

People v. Jonathan Crupi, __ A.D.3d __, 2019 NY Slip Op 03614 (2nd Dept. 5/8/19).

A search warrant authorizing a search of “computers, laptops, computer tablets, or cellular phones, along with a second search warrant that authorized the search of four specific laptops, a

19 cell phone, and a detachable hard drive was not overbroad and moreover, based on probable cause. Thus, in affirming a Richmond County defendant’s murder conviction, the court held that the description of the objects to be seized in each of the challenged warrants was not broader than was justified by the probable cause upon which the warrants were based under both federal [United States v. Ulbrecht, 858 F.3d 71, 102 (2nd Cir.); United States v, Galpin, 720 F.3d 436, 445-446 (2nd Cir.)], and state [People v. Durante, 131 A.D.2d 499] case law.

People v. Tyrone Gordon, 169 A.D.3d 714, 2019 NY Slip Op 00901 (2nd Dept. 2/6/19).

Where a search warrant permitted a search of the defendant’s person and “the entire premises located at a certain address with a described dwelling, this did not extend to two vehicles located on the property during which time evidence was seized from these vehicles. Thus, where the warrant did not particularize that a search of the vehicles was permitted and probable cause was not established to search these vehicles in the warrant, the lower court properly granted the defendant’s motion to suppress and this order was affirmed on a People’s appeal.

Darden Hearings

People v. Devon Nettles, __ A.D.3d __, 2019 NY Slip Op 03816 (2nd Dept. 5/15/19).

While a Darden hearing is ordinarily required in order to ensure that the confidential informant utilized in support of a search warrant application both actually exists and gave the police information sufficient to establish probable wit hthe excpetion that one is not required when there is sufficient probable cause based on information not provided by the informant, [See People v. Darden, 34 N.Y.2d 177 (1974); People v. Crooks, 27 N.Y.3d 609, 612-613 (2016)], the lwoer court erred in denying a Darden hearing where a detective’s on-the-scene observations, standing alone, fell short of establishing the requisite proof because they failed to confirm that the informant had actually purchased the narcotics from the subject’s apartment.. As such, the

20 case was remanded for a “hearing and inquiry in accordance with the guidelines set forth in Darden.”

Warrantless Arrests

Mapp-Dunaway

People v. Deryck Jackson, __ A.D.3d __, 2019 NY Slip Op 00203 (1st Dept. 1/10/19).

The police had probable cause to arrest the defendant for a Manhattan robbery, where the appearance of the defendant and that of his companion matched the two robbers depicted in the surveillance video in a building elevator 11 days earlier, even though the men’s faces were not discernable on the video. In affirming the denial of suppression, the first department held that when the police encountered the two men two blocks away from the robbery, the defendant’s companion was wearing a jacket with a highly distinctive design or insignia on the back and the defendant was wearing a red-brimmed variation on a standard Pittsburgh Pirates cap, a mask-like garment over part of his face, a black bubble vest and gray and black batting gloves, which exactly matched the combination of clothing items worn by the robbers on the videotape. Additionally, the first department also noted that the trial court properly exercised its discretion in precluding evidence that the victim failed to identify the defendant in a lineup since this proof was irrelevant where neither the victim, nor anyone else identified the defendant at trial in a case in which the People’s proof was based “entirely on other types of evidence.”

People v. Daniel Fleck, __ A.D.3d __, 2018 NY Slip Op 08498 (2nd Dept. 12/12/18).

21 Contrary to the lower court’s determination, the arresting officer had probable cause to arrest the defendant for operating a motor vehicle while under the influence of drugs based on his observations of the defendant as well as his training and experience. Accordingly, the order granting suppression of certain physcial evidence, the results of a breathalyser test and the defendant’s later statements to the police was reversed on a People’s appeal.

Confessions

Miranda

People v. Timothy Martin, __ N.Y.3d __, 2019 N.Y. Lexis 628 (3/28/19) [7/0; Memorandum].

Assuming without deciding that the trial court erroneously permitted testimony of defendant’s response to custodial interrogation by the police during the execution of a search warrant that he lived at the target premises on the conclusion that it fell within the pedigree exception to Miranda, any error was harmless due to the overwhelming proof of guilt in a case in which the defendant was found alone in a bedroom with drugs and drug paraphernalia in plain view.

Matter of Luis P., a Person Alleged to be Juvenile Delinquent, __ N.Y.3d __, 2018 NY Slip Op 08427 (12/11/18) [4/2; Memorandum], N.Y.L.J. 12/12/18 @ p. 26.

A majority of the Court held that a juvenile’s challenge to the admission of his statements presented a mixed question of law and fact and that as such, where there was record support for the determination of the lower courts. Beyond the review powers of the Court of Appeals. Judge Rivera, joined by Judge Wilson, would have remitted the case for a new fact-finding hearing on the conclusion that a police officer’s deception to the petitioner’s mother [after the juvenile made an oral inculpatory statement outside the presence of his mother, the detective asked the juvenile,

22 also a victim of sexual abuse, if he wanted to write an “apology note” which suggested that the note was “private,” which exchange was never related to the mother, who was not present at that point], undermined the validity of the Miranda waiver and moreover due to the fact that while the mother was present, the juvenile’s legal guardian was his grandmother, who was neither consulted nor present.

People v. Wesnel Dorvil, __A.D.3d __, 2019 NY Slip Op 06409 (2nd Dept. 8/28/19).

The complainant was robbed by two unknown assailants while walking down a street with Karina Espinal in Queens. During the ensuing police investigation, Espinal admitted that she had participated in the robbery and implicated the defendant as an accomplice with whom she planned the robbery. After the defendant was arrested and placed in an interview room at the police station, a detective asked the defendant a series of questions without administering Miranda warnings. Among other things, these questions concerned the defendant's employment, the length of his tenure at his current job, his job responsibilities, the length of time he had lived at his current address, and other places where he and his family had lived. The detective was aware, when he questioned the defendant about his employment, that Espinal had claimed to know the defendant from previously working with him at a bar. Indeed, when the questioning resumed after administration of Miranda warnings, it concerned the defendant's work history at bars at or around the time of the incident. After this questioning, the detective told the defendant: "I'm [going] to read [the] Miranda rights to you, just to get it out of the way." The detective then administered the Miranda warnings, and the defendant waived his rights. He thereafter made a incrimiating statements that were video-recorded. The appellate division held that the lower court denied the defendant’s motion to suppress both his pre-and post-Miranda statements on the holding that they were all part of a continuous interrogation that was tainted by the original un- Mirandized statements under People v. Chapple, 38 N.Y.2d 112 (1975) and People v. Behtea, 67 N.Y.2d 365 (1986) and that as such, a new trial was ordered.

People v. David R. Lang, 164 A.D.3d 963 (3rd Dept. 6/4/19).

The county court properly denied the defendant’s motion to suppress his oral responses to State Troopers who responded to the defendant’s remote farm in rural Essex County following a 911 report of a domestic disturbance during which the defendant had shot his brother in a case in which the Troopers with guns drawn, initially managed to secure the defendant and then asked him where the victim (his brother), who was still alive, and thereafter indicate where the weapon, a .22 caliber pistol, was. As the third department held, the two questions without Miranda warnings asked of the defendant by the Troopers were not intended to obtain evidence but were intended to quickly help the victim and secure the area in order that emergency medical services

23 could do their work on the reasonable conclusion that were was an emergency at hand. See People v. Doll, 21 N.Y.3d 670 (2013). In affirming, the court also held that the trial court properly discharged a sworn juror who had to attend an important medical appointment five hours away for a child and replace the juror with an alternate where there was a sufficient showing under C.P.L. 270.35 that the juror would be unable to return within two hours on that day, where defense counsel did not timely object and then on a later objection, denied an application to recess for one day. Leave to appeal to the Court of Appeals has been granted.

People v. Ervin Cummings, 157 A.D.3d 982 (3rd Dept. 2018).

There was a sufficient basis for the stop of a vehicle driven by a Tiffany Moore while the defendant was in the passenger seat by members of the Adirondack Drug Task Force based on police observation of the defendant without a seatbelt, in violation of VTL 1229, irrespective of any ulterior motives under People v. Robinson, 97 N.Y.2d 341 (2001). After a traffic ticket was written, the police saw the defendant, who was then outside the car and appeared “fidgety,” then reach into the pouch he carried at his waist, get back into the car and lean over and again exit the vehicle. The defendant’ s consent thereafter for the police to look inside the pouch, which resulted in the discovery of a cut straw with resin commonly used to ingest narcotics and the later consent by Moore to search the vehicle, which resulted in the discovery of heroin under the front passenger seat where the defendant was seated were held properly obtained on the conclusion that the police had a founded suspicion that criminal activity was afoot. The appellate division also held that because the record was not clear regarding what theory the People actually relied on, the defendant was presumed to have standing. The defendant’s statements to the police at the scene and later at the police station following Miranda warnings while somewhat intelligible as observed on a police dash-cam video at the scene, were nonetheless properly admissible where there was no proof that the defendant impaired “to the degree of mania” or that he did not understand his rights. In affirming the defendant’s narcotics possession conviction, the court, however observed that the trial court should not have permitted the People to refer to his during trial by his street name, “Mafia,” without a limiting instruction, but that any error was harmless in light of the overwhelming proof.

People v. Bass, __ Misc.3d __, 2018 NYLJ Lexis 4143 (App. Term First Dept. 12/17/18), N.Y.L.J. 12/17/18 @ p. 17.

The trial court properly denied the defendant’s motion to suppress in his driving while ability impaired prosecution in a case in which a responding police officer asked him if he was “okay,” and whether he “needed medical attention,” to which the defendant responded that he had had a “couple of beers. In affirming an order of the New York County criminal court, the appellate

24 term held that the question was not interrogation, but simply intended the clarify the situation, including the defendant’s physical condition such that Miranda warnings were not required. The defendant’s “blurted out” later statement, that he had been “out with a couple of his buddies drinking” was properly held to be spontaneous and not the product of direct or indirect police questioning.

Voluntariness

People v. Steven Morris, __ A.D.3d __, 2019 NY Slip Op 1797 (4th Dept. 6/28/19).

The court held that notwithstanding certain unspecified “deceptive” statements made by the defendant’s mother during a controlled government-agent telephone call to the defendant during an investigation in Chatauqua County of unlawful sexual contact with a three year old child, the statements did not involve a threat or a promise that would create a substantial risk that the defendant would falsely in criminate himself under C.P.L. 60.45(2)(b)(ii). Additionally, the fourth department held that notwithstanding that the defendant was interviewed at a sheriff’s office, since the defendant was not in custody, investigators were not required to have provided him with Miranda warnings. As such a trial court order suppressing this statements was reversed on a People’s appeal.

People v. Marcus Black, __ A.D.3d __, 2019 NY Slip Op 03612 (2nd Dept. 5/8/19).

The court affirmed the defendant’s burglary and stolen property conviction over claims that the defendant’s statement to the police should have been suppressed because he was deceived by the police into making a statement, by, among other things, promises of leniency and misstatements as to the evidence the police already possessed. Thus, citing People v. Thomas, 22 N.Y.3d 629, 641-642 (2013) since not all deception is improper “where deception has been employed, the People must prove, under the totality of circumstances - including the means employed and the vulnerability of the defendant - that the defendant’s statements were the product of the defendant’s own choice, or, put otherwise, that his or her will was not overborne.” The statements to the defendant by the police did not create a danger of a false confession, and they were not of such a nature that they would have “overborne” [quotes in original] the defendant’s will.

25 United States v. Sean Peter, __ F.Supp.2d __ (S.D.N.Y. 10/24/18), N.Y.L.J. 10/31/18 @ p. 21.

Police were called to a hospital in Teaneck, New Jersey on a report that a patient, the defendant, had been driven there by three people in a van and had sought treatment for a gunshot wound to his right arm. The officers interviewed the defendant while he was not in custody and obtained his consent to search the van. In doing so, they found credit cards and identifications in the defendant’s name, a large quantity of marijuana associated with marijuana distribution, $3,674 in cash and ammunition matching the type found at the scene of a fatal shooting that had occurred in the Bronx a few hours earlier. The defendant was then considered under arrest, and when he was medically cleared, was transported to the Teaneck Police Department where he was interrogated on video following the receipt and waiver of Miranda warnings, which was affirmed orally and then confirmed in writing by the defendant on a police form in which the defendant was asked to and then wrote, “yes” after each right and then again, wrote, “yes” after each waiver. The defendant spoke to the detectives and made several inculpatory statements but after about twelve minutes said, “I guess I want to talk to my lawyer.” The police continued the questioning for approximately 36 more minutes during which time the defendant made more inculpatory statements linking him to the contraband found in the van. The district court denied the defendant’s motion to suppress the first twelve minutes of interrogation holding that notwithstanding his recent injury, he voluntarily, knowingly and intelligently waived his constitutional warnings and provided the statement to the police and in particular that “however uncomfortable he may have been,” the defendant’s physical condition did not prevent him from properly making that waiver where the video recoding revealed that he was responsive, coherent and alert. It did grant suppression of the portion of the questioning after the defendant’s invocation of the right to counsel on consent of the Government but held that these statements were obtained voluntarily and could be used for impeachment purposes under Harris v. New York, 401 U.S. 222, 225-226 (1971), should the defendant testify at trial.

Spontaneous Statements

People v. Jesus Ramos, __ A.D.3d __, 2018 NY Slip Op 07669 (1st Dept. 11/13/18).

The lower court properly denied the defendant’s motion to suppress a statement prior to Miranda warnings he made after a police officer informed him that he was being arrested for forcible touching and sexual abuse, the officer added the remark, “ You can’t touch people on the train.” In affirming, the appellate division held that the officer’s declarative comment was not reasonably likely to elicit and incriminating response, and thus was not the functional equivalent

26 of interrogation in a case in which the officer essentially informed the defendant of the accusation against him.

People v. George Castro, __ A.D.3d __, 2018 NY Slip Op 07678 (2nd Dept. 11/13/18).

Although the defendant was in custody and had not yet received his Miranda warnings, the record supported the New York County suppression court determination the statement made by the defendant was spontaneous and not the product of interrogation or its functional equivalent. Thus, an investigator’s brief declarative statement about the seriousness of the defendant’s situation neither called fro a response nor was it reasonably likely to elicit one where, particularly, the investigator told the defendant that discussion of the case would be deferred until they arrived at the office, and the defendant remained silent for about five to ten minutes before making the statement.

Right to Counsel

People v. Joseph Roman, __ A.D.3d __, 2019 NY Slip Op 06719 (1st Dept. 9/24/19).

The defendant was taken into custody in Las Vegas on homicide charges and interrogated by local police there who asked him if he wanted to talk. The defendant responded, “I’ would like to tell you what happened but I think I want to talk to an attorney.” The detective, who responded by saying, “okay,” did not ask any questions and the defendant was returned to New York. Once in this state, the defendant met with an investigating detective and made incriminating written and video statements. The defendant’s first degree manslaughter conviction was reversed on a holding that the defendant unequivocally invoked his right to counsel in Nevada and that precluded a valid Miranda waiver later in New York.

People v. Quindell James, __ A.D.3d __, 2019 NY Slip Op 05150 (2nd Dept. 6/26/19).

The trial court should not have admitted a statement the defendant made to his mother during a recorded telephone call, that involved him “invoking his right to counsel.” Thus, during the call,

27 the defendant stated that, with the assistance of an attorney, he could “get around” that fact that he had touched a gun earlier that day in a weapons possession case. The trial court admitted the statement as demonstrating consciousness of guilt. Thus, the appellate division held that the statement was inadmissible because it revealed the defendant’s decision to engage counsel and the statement was an infringement on the defendant’s right to counsel but nonetheless ruled that he error was harmless beyond a reasonable doubt.

People v. Tyrone McCalla, 172 A.D.3d 750, 97 N.Y.S.3d 524, 2019 NY Slip Op 03368 (2nd Dept. 5/1/19).

While the issue was not properly preserved, as an alternative holding the court held that there was no evidence to establish that the charged burglaries in Nassau County were “so closely related transactionally, on in space or time” with certain burglaries committed in Queens on which the defendant had an attorney. As such under People v. Henry, 31 N.Y.3d 364, 369-370 (2018) and People v. Cohen 90 N.Y.2d 632 (1997), the defendant’s statements were properly held admissible.

People v. Luander Stephans, 168 A.D.3d 990 (2nd Dept. 1/23/19), N.Y.L.J. 1/25/19 @ p. 36.

N.Y.P.D Police Officer Persaud telephoned the defendant in Queens on a report from her husband that she had assaulted him. The officer asked her to come down to the precinct. The defendant and her husband reported to the precinct and after separating them, and interviewing the husband, Officer Persaud then interviewed the defendant. He told her of the assault allegations against her, that her conduct violated an existing order of protection and that she would be arrested. The defendant then told Officer Persaud that she and her husband had gotten into an argument, that she did not mean to hit him, but when she swung at his face, her ring might have cut his eye. Officer Persaud testified that although he talked to her about “personal stuff” such as where she worked and where she was from, he had not questioned her about the alleged assault before she made the admissions recounted above. Officer Persaud further testified that after he and the defendant conversed for an unspecified period of time, he got up to leave the interview room and the defendant offered him “sex and money” to “make the charges disappear.” Officer Persaud told the defendant that he would have to leave to confer with his supervisors. N.Y.P.D Internal Affairs was contacted, Officer Persaud returned to the interview room about an hour later with a recording device secreted on his person and he thereafter recorded the defendant’s repeated offer give him sex and money in exchange for making the charges disappear. Officer Persaud left the room again and returned about an hour later with his sergeant. When they informed the defendant that she was being charged with bribery, she appeared surprised and said that she was “just trying to give him something for his kindness because he

28 was kind to me.” The defendant was never given constitutional warnings prior to all her statements. The defendant was arraigned on the bribery and assault charges with and attorney present and released. Four days later she called the precinct and reported to a detective that Officer Persaud had “felt her breast, grabbed her private parts and asked her for $2,500 in cash. She further reported that Officer Persaud had repeatedly called her following her release and told her not to say anything. N.Y.P.D. Internal Affairs detectives contacted her and met with her in order to pursue these allegations. She was interviewed in the back of a police car during which time she repeated her claims against Officer Persaud. The interview was recorded without her knowledge and again not provide with Miranda warnings. During the assault and bribery trial, this recording was introduced and played for the jury on consent, but midway through, the trial judge interrupted and at a side-bar observed that the recording was “highly prejudicial,” that the defendant should have had attorney present, that the defendant had an attorney on related charges and that he was thinking of declaring a mistrial. Defense counsel then moved for a mistrial but the court denied the application with an instruction that the jury was to disregard what was on the recording. The defendant testified at trial that Officer Persaud touched her sexually and made sexually explicit comments. She also said that she was frightened, that she tried to get out of the situation by offering the officer money and telling him that they could have sex the following week. The defendant was acquitted of the assault charges but convicted of the bribery offenses. The appellate division held that while the defendant’s initial un-Mirandized statements to the police about the alleged assault were not spontaneous as found by the suppression court, any error was harmless since the defendant was acquitted of these charges. However, a majority of the court voted to reverse the defendant’s bribery conviction 3-1 in the interests of justice on the holding that the trial judge’s denial of the mistrial motion was error since the defendant pursuant to People v. Cohen, 90 N.Y.2d 632-638-639 (1997), and related cases, the questioning by Internal Affairs of the defendant about her claims regarding Officer Persaud where so inextricably interwoven in terms of their temporal and factual relationship as to “render unavoidable the conclusion that any interrogation regarding the false report would inevitably elicit incriminating statements regarding the matter on which she had an attorney.” The majority also found that trial counsel was ineffective for failing to object to the introduction of the Internal Affairs recorded statement. Justice Dillon dissented on the conclusion that the trial court cured any error by striking the recording and providing a curative instruction and that counsel was not ineffective where the recording in question was part of a legitimate trial strategy.

People v. Perlagio Fulgencio, 168 A.D.3d 1094, 2019 NY Slip Op 00617 (2nd Dept. 1/30/19).

The trial court properly engaged in an inquiry of the defendant in order to ascertain the substance of his request to substitute counsel under People v. Porto, 16 N.Y.3d 93, 99 (2010) and People v. Sides, 75 N.Y.2d 822, 824 (1990), and thereafter declined the request in the defendant’s Westchester assault prosecution.

29 People v. Corvall Hampton, 168 A.D.3d 559, 2019 NY Slip Op 00398 (1st Dept. 1/22/19).

The trial court provided the defendant of an adequate opportunity to state his reasons for his request to substitute counsel in his Manhattan murder case and then providently exercised its discretion under People v. Porto, 16 N.Y.3d 93 (2010) and People v. Sides , 75 N.Y.3d 822 (1990), where the defendant merely indicated that he did not feel like his attorney was “fighting a defense for [him],” and where the court reviewed the proceeding to demonstrate what work counsel had done. In affirming, the court also noted that an additional ground for rejecting the defendant’s request was that two weeks later at the defendant’s plea allocution, the defendant indicated he was satisfied with his attorney and that vague allegations of an adversarial relationship between the defendant and his lawyer did not compel the court to substitute counsel.

People v. George Ventura, 167 A.D.3d 401, 2018 NY Slip Op 08233 (1st Dept. 12/4/18).

The trial court providently exercised its discretion in denying the defendant’s requests for new counsel, made during the suppression hearing and jury selection in the defendant’s murder and weapons possession prosecution in a case in which the court conducted a thorough inqury in the defendant’s requests (especially following the second request), and it gave the defendant numerous opportunities to elaborate on his conclusory statements that defense counsel was unprepared and where the defendant’s only specific complaints were unfounded. When defense counsel joined in the defendant’s application during jury selection, he cited only the defendant’s recent request and his client’s belligerence in court the proceeding day, which did not amount to an irreconcilable conflict that required counsel to be relieved. As the court noted, quoting, People v. Felder, 17 A.D.3d 126, 127 (1st Dept. 2007), “no conflict existed other than that created by the defendant though his unjustified hostility toward his competent attorney.” In affirming, the appellate division also sustained consecutive sentences imposed for the defendant’s murder and weapons possession convictions where the evidence supported the inference that the defendant’s unlawful possession of the weapon on the street was complete before he drew the weapon and shot the victim.

People v. Chauncey Lee, __ A.D.3d __, 2018 NY Slip Op 08508 (2nd Dept. 12/12/18).

The defendant had a prior criminal matter that was terminated by the granting of an adjournment in contemplation of dismissal [ACOD]. Thereafter, he was identified in a lineup as the

30 perpetrator of a stabbing and gave a written statement to the police in which he admitted to the stabbing but claimed self-defense. Under these circumstances, the lower court correctly denied the defendant’s motion to suppress his identification and statement in his assault prosecution on the ground that where the defendant’s ACOD effectively terminated the prior matter, his right to counsel was not violated in this case.

People v. Philip G. Sarner, 167 A.D.3d 663, 2018 NY Slip Op 08335 (2nd Dept. 12/5/18).

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to the defendant with respect to his motion to withdraw his guilty plea. As such, the trial court should have assigned a different attorney to represent the defendant. In so ruling the appellate division held the appeal in abeyance and remitted the case to permit the defendant to move to withdraw his plea with new counsel. Leave to appeal too the Court of Appeals has been denied. 32 N.Y.3d 1168 (1/3/19).

People v. Craig Johnson, 165 A.D.3d 1168, 2018 NY Slip Op 07147 (2nd Dept. 10/24/18).

The defendant was deprived of his right to counsel when the police conducted a pre-accusatory investigative lineup proceeding following the defendant’s arrest for multiple robberies in Brooklyn under People v. LaClere, 76 N.Y.2d 670, 672 (1990) and People v. Coates, 74 N.Y.2d h244, 249 (1989), among other cases cited, where the detective conducting the lineup testified at the pre-trial Wade hearing that he was aware that the defendant was represented by an attorney in the case under investigation, that he had this knowledge at least two hours before conducting the lineup, and that he failed to notify the attorney before conducting the lineup. In reversing the denial of the suppression of the identification based on a determination of a denial of the right to counsel, the court granted a new trial not only on the robbery count directly impacted by this identification, but also on a second robbery that also resulted in a conviction at the defendant’s trial due to prejudicial spillover and the inability to separate any possible taint. Note that LaClere appears to have been directly implicated where the attorney was known to the police to have entered the proceeding since the court notified the police and Coates appears to be inferentially supportive since in that case the defendant requested an attorney prior to a lineup and the police knew that attorney represented the defendant in a pending case.

Self-Representation

31 People v. Kendal R. Gregory, 33 N.Y.3d 1017, 2019 NY Slip Op 04450 (6/6/19) [7/0; Memorandum], N.Y.L.J. 6/7/19 @ p. 22.

The trial court did not abuse its discretion in denying the defendant’s request to proceed pro se after its conclusions, based on its own observations of the defendant’s conduct throughout lengthy proceedings and the testimony of the defendant’s attending physician that the defendant engaged in malingering insofar as he was capable of proceeding but persisted in efforts to avoid trial.

People v. Raymond Crespo, 32 N.Y.3d 176 (10/16/18) [4/3; DiFiore, C.J.], N.Y.L.J. 10/17/18 @ p. 22.

A majority of the Court held 4-3 (DiFiore, C.J.), that a request by a defendant to proceed pro se made after 11 jurors were selected and sworn by before opening statements was untimely as a matter of law and that such, the request was property denied by the trial court. Thus, after a adverse ruling in a suppression hearing and advise that the case would proceed to trial the next week, the defendant’s assigned counsel indicated that his client wanted a new attorney and that if a new attorney were not assigned he did not wish to be present at trial, the court denied the request. The court then informed the defendant that he was free to hire another attorney but that the case was close to two years old and would not be delayed any further and moreover advised him that it was in his best interests to attend the trial, but that if he chose to absent himself the case would proceed without him. The defendant then conferred with his attorney and refused to come to court. When the case was called to trial the next week, defense counsel’s application to be relieved based on the the defendant’s unwillingness to talk to him was denied. In doing so, the court indicated that it had no reason to believe that the defendant’s dissatisfaction with his attorney was rooted in anything other than the realities of his case. The court then produced the defendant in order to explain his right to be present and adjourned the case for a day to permit defense counsel to speak with the defendant but the defendant refused. Jury selection began in the defendant’s absence and 11 jurors were selected and sworn. The defendant then voluntarily appeared and asked to represent himself. The court rejected the request and advised that it was “too late to make that request now in the midst of trial.” The defendant was then removed from the court room when he told the judge that he wanted to tell the jury that he was dissatisfied with his attorney and in doing so, the judge indicated that it viewed the defendant’s conduct as “simple manipulation.” The defendant chose to remain in the holding cell each day during trial and was later convicted of first degree assault and weapons possession. In reversing, the Court of Appeals reversed a contrary ruling of the first department [144 A.D.3d 461 (1st Dept. 2016)] and held that since a request to proceed pro se must be asserted in a timely fashion, without causing undue delay and it must be advanced before the trial commences, i.e., under C.P.L. 1.20 (11) and People v. McIntyre, 36 N.Y.2d 10 (1974), before the start of jury selection, or in the case of a non-jury

32 trial, before opening statements. Judge Rivera, joined by Judges Fahey and Wilson, voted to affirm on the holding in McIntyre, [36 N.Y.2d at 16-17], that the request was timely made because it was presented prior to opening statements. Presiding Justice Scheinkman sat by designation due to the recusal of Judge Feinman. A petition for certiorari to the Supreme Court was docketed on 1/31/19.

People v. Alfonso Rizzuto, __ A.D.3d __, 2018 NY Slip Op 09006 (1st Dept. 12/17/18).

The defendant proceeded to trial pro se with standby counsel in his Bronx second degree burglary prosecution. While awaiting his arrival in court, the plea court had a conversation with the prosecutor concerning “essentially administrative matters.” The court affirmed the defendant’s conviction and held that where there were no applications by either side, or determinations of any legal of factual issues, nothing occurred in the defendant’s absence that required the defendant’s presence, including in his capacity as an attorney.

United States v. Adnan Ibrahim Haurun A Hausa, 922 F.3d 129, 2019 U.S. App. Lexis 12105 (2nd Cir. 4/24/19) [Per Curiam], N.Y.L.J. 5/6/19 @ p. 17.

The “chaotic atmosphere” created by the defendant in which he ignored and refused to answer questions, demanded to be sent to an international court, speaking at an untranslatable pace prevented the district court from assessing his purported waiver of his right o counsel to the extent that his Sixth Amendment claim was denied on appeal. In affirming the defendant’s conviction for in involvement in al-Quaeda activities in Afghanistan against coalition forces, the court held that the defendant’s “egregious intolerable misconduct” provided independent support for the denial of his waiver of counsel.

Ineffective Assistance

People v. David Mendoza, __ N.Y.3d __ (6/13/19) [7/0; DiFiore, C.J.], N.Y.L.J. 6/14/19 @ p. 24.

Although defense counsel conceded the defendant’s guilt during his representation at trial during the defendant’s larceny trial in doing so, pressed for leniency and essentially requested jury nullification,” which is not permitted under New York law [see People v. Goetz, 73 N.Y.2d 751 (1988) and People v. Weinberg, 83 N.Y.2d 262, 268 (1988)] without much interference from the court or prosecutor,” the Court held that he provided meaningful representation under both the

33 federal and state constitutions. Thus while conceding, quoting United States v. Thomas ,116 F.3d 606, 615 (2nd Cir. 1997) , that jury nullification is “an inevitable consequence of the jury system,” defense counsel’s argument viewed in its entirety, was meaningful.

People v. Jaime Lopez-Menoza, __ N.Y.3d __ (6/13/19) [6/1; Wilson, J.], N.Y.L.J 6/14/19 @ p. 25.

A majority of the Court held 6-1, per Judge Wilson, that defense counsel provided meaningful representation for a rape defendant notwithstanding claims that the attorney failed to review and moreover, understand the significance of a surveillance recording in a case in which an intoxicated hotel guest was allegedly raped by the defendant, a hotel employee and the defendant, under a waiver of immunity testified before the grand jury that he indeed had sexual relations with the victim but maintained they were consensual. In affirming the majority also held that any claims regarding the introduction of DNA evidence (the defendant’s saliva was found on the victim’s breast but the vulva swabs did not match the defendant’s DNA) under People v. John, 27 N.Y.3d 294 (2016) was harmless. Judge Rivera dissented on her conclusion that defense counsel pursued a defense that was fatally flawed and had no strategic basis after the People warned him that any defense was clearly disproven by the video tape provided to counsel in discovery and which counsel evidently failed to review.

People v. Naveed Goondall, __ A.D.3d __, 2019 NY Slip Op 04721 (2nd Dept. 6/12/19).

The defendant was provided with ineffective assistance of counsel where after his attorney successfully challenging his idenfication as the perpetrator in a robbery case in a case in which one eyewitness was unable to indeify the defendant in court as one of wto assailants and only after three tries testified that the defendant “looked like” the robber, then abandoned that claim and during summation, essentially conceded that the defendant was present, thus in favor of a “nebulous and contradictory argument” that there was no forcible taking. As such the second department ordered a reversal and a new trial.

People v. Derven Thompson, __ A.D.3d __, 2019 NY Slip Op 04968 (2nd Dept. 6/19/19).

The defendant’s second degree murder and gang assault conviction was affirmed over claims that his attorney was ineffective. In so ruling the second department held that his attorney effectively

34 cross-examined the medical examiner regarding certain Brady material he received from the People, that there was no basis for the attorney to have requested a lesser included charge of first degree manslaughter in a case involving 24 stab wounds and that he attorney should not have objected to the discharge of an absent juror who failed to return to the courthouse within two hours of the time set by the court and reasonable efforts to locate him, including multiple phone calls to his cell phone which went unanswered and a search of the courthouse security area and juror’s lounge. The appellate division did note that a 911 call placed by the victim’s friend more than a half hour after the incident did not have any indicia of an excited utterance and should have been excluded by any error in its admission was harmless beyond a reasonable doubt in light of the overwhelming proof of guilt.

People v. Darryl T., __ A.D.3d __, 2018 NY Slip Op 06634 (1st Dept. 10/4/18).

The defendant was deprived of effective assistance of counsel when, following his plea of not responsible by reason of mental disease or defect to first degree robbery, (he had a lifetime history or mental illness), his attorney conceded that the defendant had a mental disorder and thus effectively waived the defendant’s right to an initial hearing concerning his civil confinement pursuant to C.P.L. 330.20(6). Thus, based on counsel’s concession at the defendant’s plea, he was classified as a “track one”inmate based on a finding that he suffered from a “dangerous mental disorder,” meaning that he suffered from a “mental illness” and that because of such condition he currently was a “physical danger to himself or others” [C.P.L. 330.20(1)(c)] and that as a “more dangerous acquittee” was, without any reports or hearing, placed under the custody of the Commissioner of Mental Health and ordered committed for confinement in a secure facility for treatment for at least six months with extensions possible thereafter. Cf., People v. Odell B.-P., 154 A.D.3d 534 (1st Dept. 2017) noted by the court in which counsel made the same concession but was found effective since this was done after the receipt and review of pertinent reports.

People v. Alma Caldavado, __ A.D.3d __, 2018 NY Slip Op 07743 (2nd Dept. 11/14/18).

The People called 13 medical professionals, 9 of whom testified as experts in the defendant’s first degree assault and endangering the welfare of a child trial in a case arising out of injuries alleged sustained by a seven month old infant, who had been left with the defendant while the infant’s parents were at work. Trial counsel for the defendant did not call a medical expert, but instead obtained the written report of a medical expert before trial, retained a pediatric neurologist as a consulting expert and through cross-examination of the People’s witness’s elicited testimony that supported the defendant’s theory that the infant sustained injuries prior to being left at the defendant’s home. The appellate division affirmed the defendant’s conviction and her motion to vacate, the latter following a hearing that determined that counsel’s decision not to call an expert

35 was a strategic one and that his lawyer was not effective under either Strickland v. Washington, 466 U.S. 668 (1984) or the New York standard under People v. Baldi, 54 N.Y.2d 137, 147 (1981).

People v. Casey Wilson, __ A.D.3d __, 2018 NY Slip Op 05715 (3rd Dept. 8/9/18).

Counsel’s failure to request a Frye hearing to contest the admissibility of evidence derived from a computer program utilized by the TrueAllele Casework system, a proprietary “computer program that use[d] mathematics and statistics to interpret” the electronic data generated from DNA mixture taken from lavender gloves found at the scene of a 2013 sexual assault utilized to determine the statistical probability of a match between the defendant’s DNA and that found inside the gloves [an expert testified that the match was 31.3 million times more probable than a coincidence with respect to one glove and 817,000 times more probable with respect to the other constituted ineffective assistance, where at the time of the pre-trial proceedings in 2014, there were no reported trial court of appellate division decisions establishing this DNA procedure’s reliability as “novel scientific evidence.” See People v. Fields, 160 A.D.3d 1116 (3rd Dept. 4/12/18), People v. Wakefield, 47 Misc.3d 850 (Sup. Ct. Schenectady Co. 2015), which later held this process to be reliable under Frye and admissible. In so ruling, the court noted that where counsel had “everything to gain and nothing to lose” with this application reversal and a new trial was required.

Garza v. Idaho, 203 L.Ed.2d 77 (2/27/19) [Sotomayor, J.].

Reversing the Idaho Supreme Court, the Court held, 7-2, that a defense attorney who ignores a client’s instruction to file a notice of appeal after the client has waived the right to appeal as part of a negotiated guilty plea has per se provided ineffective assistance of counsel. As part of a favorable negotiated guilty plea, Garza signed two waivers of the right to appeal. Soon thereafter, he repeatedly instructed his defense counsel to file a notice of appeal. The defense attorney responded that an appeal was “problematic” because of the waivers. Despite Garza’s specific instructions, defense counsel failed to file a notice of appeal. Moreover, he did not tell Garza of his inaction. Four months after sentencing, after the time to file the notice had lapsed, Garza filed a post-conviction petition in an Idaho state court arguing that his attorney’s inaction constituted ineffective assistance of counsel. Eventually, the Idaho Supreme Court denied relief because Garza had not proved prejudice. The Supreme Court reversed, extending its holding in Roe v. Flores-Ortega, 528 U.S. 470 (2000) to cases where a defendant waives the right to appeal. In Flores-Ortega the Court held that an attorney’s failure to file a notice of appeal in a non-waiver case constituted per se ineffective assistance.

36 Ineffective Assistance - Appellate Counsel

People v. Omar Alvarez, __ N.Y.3d __ (3/28/19) [5/2; Stein, J.].

A majority of the Court held 5-2 that the appellate division properly denied the defendant’s petition for a writ of error coram nobis following his conviction for first degree murder based upon the claim that his was deprived of the effective assistance of his appellate counsel due to counsel’s failure to challenge the defendant’s sentences as unduly harsh and severe and also based on claimed deficiencies in the quality of both the appellate brief and appellate counsel’s communication with the defendant. In affirming, the majority noted that while there was no question that the appellate brief filed was “somewhat terse, could have been better drafted and is not a model to be emulated,” the four issues raised were sufficiently articulated to permit the appellate division to address each on appeal. Thus, under the New York “meaningful standard” test for determining ineffectiveness, [see People v. Baldi, 54 N.Y.2d 137, 147 (1081); People v. Turner, 5 N.Y.3d 476, 482(2005)], which offers greater protection that the federal Strickland test, [see People v. Paban, 28 N.Y.3d 147, 156 (2016) - sic. “Caban”], there was effective appellate assistance. Judge Rivera, and Judge Wilson, separately dissented on the conclusion that appellate counsel failed to timely file a brief articulate claims relative to the mandated intermediate appellate court weight of the evidence review, was riddled with grammatical and typographical errors and request an interest of justice sentence review, and thus failed to provide effective appellate counsel assistance. The case is discussed in L.K. Neuner & W. Russell, “Judges Voice Strong Views in Ineffective Assistance of Counsel Decision,” N.Y.L.J. 4/16/19 @ p .3.

Discovery/Rosario/Brady/Freedom of Information

People v. LeClair, __ Misc.3d __, 2019 NYLJ Lexis 297 (Co. Ct. Essex Co. 1/29/19), N.Y.L.J. 1/29/19 @ p. 21.

On reargument of a prior order of the court that granted a defense application to compel disclosure of State Police policies on the use of force, use of canines and evidence logging (the district attorney failed to oppose the initial application], I nteh defendant’s assault and related-crimes case, the court granted the motion and vacated its prior order on the holding that such material is not discoverable under C.P.L .240.20 and moreover, while potentially helpful to the defense on cross-examination, not discoverable as a matter of due process or the Brady rule.

37 Brady

People v. Derrick Ulett, __ N.Y.3d __, 2009 N.Y. Lexis 1775, 2019 NY Slip Op 05060 (6/25/19) [7/0; Garcia, J.], N.Y.L.J. 6/26/19 @ p. 22.

The Court reversed the defendant’s second degree murder conviction on the holding that the failure by the People to disclose a surveillance recording that captured the scene at the time of a Brooklyn shooting in question, in a case in which several eyewitnesses identified the defendant as the shooter and one placed him at the scene, nonetheless raised a reasonable probability [the defendant never specifically requested the production of Brady material] that the result would have been more favorable had it been disclosed. Thus, where a key witness, and childhood friend of the defendant testified as a cooperator in an effort for a beneficial result in a pending robbery case, testified that the defendant pulled out a gun and shot the victim after an argument, and after extensive cross-examination argued in summation about the lack of video surveillance, to which the prosecutor responded that “we don’t have that video,” where there was no forensic proof in a case resting solely on eyewitness testimony, the video could have been effectively used as a “focal point” to benefit the defendant, especially where the prosecutor “compounded” the error in summation. The case is discussed in C. Morris, “Focus of FOIL: Finding Brady Evidence in People v. Ulett,” The Suffolk Lawyer, September 2019 @ p. 17.

People v. John Giuca, 33 N.Y.3d 462, 2019 N.Y. Lexis 1640, 2019 NY Slip Op 04642 (6/11/19) [5/1; DiFiore, C.J.]. N.Y.L.J. 6/12/19 @ pp. 1 & 22 .

To the extent that there was any suppression of impeachment material under Brady, a majority of the Court held that there was no reasonable possibility that the defendant’s murder conviction would have been different had the information been disclosed. In so ruling, the majority reversed an appellate division reversal [158 A.D.3d 642 (2nd Dept. 2018)], and reinstated the defendant’s conviction in a case following a grant of a C.P.L. 440.10 motion to vacate in which the People did not disclose certain information relating to a cooperating witness’s initial contact with the police in connection with the defendant’s case as well as the trial prosecutor’s intervention with the court in connection with problems with the witness’s drug treatment program. Thus, notwithstanding any in essence, a unilateral hope for leniency by the witness, in the absence of any express, “tacit or otherwise” prosecutorial agreement or promise to provide a benefit to the witness in return for the witness’s testimony and where the witness never spoke to law enforcement until he had “brokered his agreement on a pending case,” that among other things included a promise of the possibility of a complete dismissal upon the successful completion of a drug treatment program, the claimed failure to disclose this as impeachment material was without basis. As such, the

38 appellate division’s decision that that the trial jury could have found that a tacit understanding that the witness “would receive or hoped to receive a benefit for his testimony” [158 A.D.3d at 646] was erroneous and as the Court noted, apparently based on “an overly broad reading of some of our cases addressing tacit agreements [see e.g., People v. Novoa, 70 N.Y.2d 490 (1987); People v. Cwikla, 46 N.Y.2d 434 (1979)].” Indeed, referring to several federal cases, and quoting White v. Steele, 853 F.3d 486, 491 (8th Cir. 2017), the majority observed in a footnote “without a hint of of a deal, even if (the witness) did expect to get something, the State could not have known of (the witness’s) expectation. Judge Rivera dissented on her conclusion that where defense counsel made a specific request for impeaching material, the failure to disclose the, a at minimum, “inferential evidence” that the witness expected a benefit for his testimony warranted a new trial under the Giglio rule and under People v. Steadman, 82 N.Y.2d 1, 7 (1993). Judge Fahey took no part in the decision. The case is discussed in B. Gershman, “Some Thoughts on ‘People v. John Guica,’” N.Y.L.J. 6/18/19 @ p. 6.

People v. Jerome Wade, __ A.D.3d __, 2018 NY Slip Op 08044 (2nd Dept. 11/21/18), N.Y.L.J. 11/26/18 @ p. 22.

While the People have an obligation to disclose both exculpatory and impeachment material under Brady, and there was evidence of allegations of misconduct against two officers who were primarily involved in the investigation and arrest arising out of police department IAB investigations and federal civil lawsuits in the defendant’s weapons possession case, the record in the case established that the defendant’s trial attorney had knowledge of most of the relevant documents related to these matters such that there was no reasonable possibility that had this information been formally disclosed, the result of the trial would have been different.

Identifications

People v. Mark Baez, __ A.D.3d __, 2019 NY Slip Op 06163 (2nd Dept. 8/21/19).

While show-up idnetification procedures are generally disfavored, where the show-up took place 30 minutes after the crime and eight blocks away from the crime scene in Queens, the loer court properly held it to be admissible at the defendant’s weapons possession and stolen property trial. In affirming, the appellate division rejected claims that the show-up procedure was necessarily unduly suggestive because the complainant knew that the police had a suspect in custody, because the defendant was handcuffed and in the presence of police officers and police cars.

39 People v. Saul Robles, __ A.D.3d __, 2019 NY Slip Op 05572 (2nd Dept. 7/10/19).

While holding that the defendant’s guilty verdict after a Brooklyn trial of attempted murder and related crimes was based on legally sufficient evidence and not against he weight of the evidence, the appellate division reversed and ordered a new trial due to the erroneous admission of testimony from an eyewitness that even though she was unable to identify the defendant in two lineups, she in response to an investigator’s query, “leaned toward him,” in violation of C.P.L. 60.25. As the court noted, here the witness never identified the defendant at a prior identification procedure and thus could not properly testify about it to the jury. In ordering a new trial, the court also note that although the issue was unpreserved, the prosecutor’s summation was “inappropriate and unacceptable” where she argued tot he jury “he’s guilty,” vouched for the credibility of witnesses and also referred to the defendant as “machismo.” In noting these errors, the court expressed its “strong disapproval of such conduct.”

People v. Richard Jones, __ A.D.3d __, 2019 NY Slip Op 04966 (1st Dept. 6/19/19).

A detective testified at a pre-trial Wade hearing that during his investigation of on Brooklyn robbery arising out of the threatened use of a taser on the victim, Steve Fisher, by the perpetrator outside the victim’s building, the landlord of the complainant’s building gave him a cell phone he found in front of the building after the robbery. The detective looked through the phone and thereafter conducted two identifications with the complainant using a police department photo-manager computer system. Fisher viewed the defendant’s photograph during one of the procedures but did not identify anyone. The detective then showed the complainant the cell phone, told him it was recovered from the scene of the robbery and asked if it was his. The victim responding it was not. The detective had the victim then view videos that were saved on the phone, one of which portrayed a male tasing an individual who was sleeping on a staircase. Fisher identified the the male in the video as the perpetrator who robbed him. The detective further testified at the hearing that he then submitted a still photograph of the male with the taser in the video to a facial recognition program, which matches photographs to photographs of criminal offenders stored in a database. The defendant was a match for the male depicted in the still photographs. Fisher then identified the defendant from a photo-array and a lineup that were conducted by the police as the person with the taser who robbed him. Prior to trial, the lower court determined that it would not permit the People to introduce the video frpm the cell phone in evidence; however, it also ruled that the still photograph taken from the video could be admitted. While affirming the conviction on the defendant on several robbery counts involving another

40 victim, Clayton Alfred, that occurred the day before wit hthe same modus operandi, the court reversed two counts involving Fisher on the holding that contrary to the suppression court’s conclusion, the procedure employed by the detective in showing Fisher the video on the recovered cell phone was “police arranged” even though the police did not arrange the content of the video on the phone and accordingly, where the video depicted the defendant committing a violent act was coupled with advice to the complaint by the detective that the phone was recovered from the scene of the robbery, the procedure was unduly suggestive. Thus where the evidence relating to the Fisher robbery was not overwhelming, the error could not be deemed harmless. In affirming the Alfred robbery convictions, the appellate division also held all counts were properly held tried together to the extent that a motion to sever was properly denied.

People v. Jose Baez, __ A.D,3d __, 2019 NY Slip Op 03611 (2nd Dept. 5/8/19).

“While the fillers used in a lineup must be sufficiently similar to the defendant so that no characteristic of visual clue would alert the viewer toward the defendant as a perpetrator of the crimes charged, [cit. omitted], there is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance,” quoting, People v. Jean-Baptiste, 57 A.D.3d 566, 567. Thus, where the fillers sufficiently resembled the defendant and the police took reasonable steps to conceal any differences between the appearances of the men seated, by using a sheet over their laps, having the participants hold their numbers in front of them and by the fact that them men all wore baseball caps to account for any differences in hairstyles, the lineup was not unduly suggestive and the defendant’s robbery conviction was affirmed.

People v. Jose Perez, __ A.D.3d __, 2019 NY Slip Op 00206 (1st Dept. 1/10/19).

The trial court properly denied the defendant’s suppression motion notwithstanding an unspecified “substantial gap” between the larceny observed by the identifying witness and the show-up, which occurred shortly after the witness saw the defendant again. In so ruling the court held that exigent circumstances justified this identification proceeding because the officers, who were in the middle of an undercover operation, needed to know that they had apprehended the right person or whether they should continue to keep looking for other suspects. In so ruling, the court rejected claims that the show-up was improper because the police already had probable cause to arrest the defendant.

People v. Martin Washington, __ A.D.3d __, 2019 NY Slip Op 00070 (1st Dept. 1/8/19).

The trial court properly denied the defendant’s motion to suppress identification testimony without granting a hearing pursuant to People v. Rodriguez, 79 N.Y.2d 445 (1992) in a robbery case in which the People’s papers filed in opposition to the application for a Wade hearing (in

41 which the defendant contested the People’s assertion of prior a prior relationship in voluntary disclosure) set forth detailed factual assertions regarding the relationship between the defendant and the identifying witness, including the witness’s knowledge of the defendant’s nickname and where the defendant failed to submit a reply or otherwise controvert these allegations. In affirming, the court held that there was no factual issue requiring a hearing.

Rodriguez Hearings

People v. Nini Lee, __ A.D.3d __, 2019 NY Slip Op 00824 (1st Dept. 2/5/19).

At a Rodriguez hearing, the testimony in the defendant’s robbery case established that a witness was sufficiently familiar with the defendant so that his identification of the defendant was confirmatory. Thus, the People were not obligated to call the identifying witness either as a matter of procedure or due process because the detective gave detailed testimony about the witness’s relationship with the defendant who was a frequent customer in his store and sw him several times a week over a period of three years and where at a suppression hearing hearsay is generally admissible.

Improper Bolstering

People v. Tremaine Holmes, 167 A.D.3d 1039, 2018 NY Slip Op 08954 (2nd Dept. 12/26/18).

While the trial court should not have permitted the People, without objection, to elicit testimony from a detective in the defendant’s Brooklyn murder trial that after a lineup was conducted, the defendant was arrested since this constituted improper bolstering, the issue was reached in the interests of justice and the “Trowbridge” error found harmless beyond a reasonable doubt in this one-witness identification case, where the evidence of guilt, without the improper testimony was held overwhelming.

Bail

42 United States v. Jean Boustani, 932 F.3d 79 (2nd Cir. 8/1/19), N.Y.L.J. 8/2/19 @ p. 1 & 8/7/19 @ pp. 1 & 21.

The provisions of the federal Bail Reform Act cannot be interpreted to permit a “two-tiered” system in which wealthy defendant’s to use their financial resources to provide for bail conditions that would not otherwise be available to less wealtjhy defendants. Thus, proposed home confinement with private security guards as first recognized in United States v. Sabhani, 493 F.3d 63, 75 (2nd Cir. 2007) as proper conditions was properly rejected by the district court.

Grand Jury

Dismissals

People v. Jayvon McKinney, 171 A.D.3d 855, 2019 NY Slip Op 02950 (1st Dept. 4/18/19).

The trial court erroneously dismissed an indictment charging the defendant with crimes committed in two incidents, both of which were recorded in videotapes presented to the grand jury, on the ground that a police officer who witnessed neither incident, but knew the defendant from the “area,” identified him in each videotape. As the court noted on reversing on a People’s appeal, the testimony was neither impermissible nor did it render the presentment defective since unlike trial jurors who can normally observe a defendant in court, grand jurors do not have that means of making a comparison between a videotape and a defendant’s appearance. Although the appellate division expressed no opinion regarding whether this testimony would be permissible at trial compare, People v. Riddick, 164 A.D.3d 526 (2nd Dept. 2018), in which a police officer was improperly permitted to identify a defendant during a trial as the person in a video recording where the officer had never known the defendant before and had just briefly interviewed him two weeks after the crime.

Impairment of Integrity

People v. Edward Malloy, 166 A.D.3d 1302, 2018 NY Slip Op 07977 (3rd Dept. 2018).

43 Notwithstanding three instances in which a grand juror acknowledged that he/she knew a witness during a presentment on a Albany murder and related-crimes case, and thereafter, on inquiry of the prosecutor, the grand juror indicated that there was nothing in this prior knowledge that would prevent him/her from being fair and impartial, the exceptional remedy of dismissal based on a showing of potential prejudice was not established. In affirming the defendant’s conviction after trial, the court however observed that the precise nature of the prior relationship between the juror and each witness should have been explored, the “salient evidence” during the presentment did not come from any of these witnesses but from extensive surveillance video recordings, the testimony of these witnesses at issue “proved to be of little, if any consequence.” Additional issues regarding a Batson challenge and whether a People’s witness was permitted to take the stand solely to assert his Fifth Amendment privilege against self-incrimination are discussed below. Leave to appeal to the Court of Appeals was granted by Justice Clark who dissented on the Batson issue on 1/10/19. See 32 N.Y.3d 1180.

Re-Presentation of Charges

People v. Doran Allen, __ N.Y.3d __ (12/13/18) [7/0; Fahey, J.], N.Y.L.J. 12/14/18 @ p. 24.

The defendant was indicated in 2008 under an acting in concert theory for, among other crimes, first degree manslaughter and attempted second degree murder as the getaway driver during a shooting that resulted in the death of one victim and injury of two survivng victims. The first grand jury deadlocked on a charge of second degree murder as against the defendant and the People took no “official action” with respect to that grand jury action. In 2011, the People filed a second indictment containing charges against the defendant and a third co-defendant and a second degree murder charges against hte defendant. Although the People had “albeit belatedly” obtained permission to resubmit the matter to this new grand jury with respect to the co- defendant, they never obtained such permission regarding the defendant on this charge as required under C.P.L. 190.75(3). Following a denial of the defendant’s motion to dismiss, the defendant proceeded to trial on both indictments wherein he was tried jointly with two others. After trial, the jury acquitted the defendant of the murder charge in the second indictment and convicted him of hte manslaughter charge contained in the first indictment, while acquitting him of all other charges in that accusatory instrument. The Court of Appeals reversed a divided appellate division order that granted the defendant a new trial on grounds that the improper prejudice of the murder charge “loomed over the trial and in some way influenced the verdict,” on the holding that while the People failed to comply with C.P.L. 190.75(3), with respect to the murder charge only, all other charges were properly based, and that as such, distinguishing People v. Mayo, 48 N.Y.2d 245 (1979), there was no reasonable possibility that the presence of

44 the murder count influenced the manslaughter conviction where the jury was instructed to consider each count separately and thus the conviction was not tained. Judge Rivera concurred on her conclusion that there was no r4ason to apply a prejudice standard and that in any event, the erroneously obtained murder count was jurisdictionally defective and subject to dismissal.

Accusatory Instruments

Amendments to Indictments

People v. Malcolm McLean, 170 A.D.3d 1196, 2019 NY Slip Op 02356 (2nd Dept. 3/27/19).

The defendant was charged with, among other things, second degree criminal possession of a weapon in an indictment that specified the date of the crime as “on or about the 20th day of October, 2015.” According to the district attorney’s voluntary disclosure form, the crime occurred on October 20, 2015 at 7:36 a.m., at a former girlfriend’s address in Hempstead with no reference to the defendant’s residence. On the first day of trial, immediately prior to jury selection, the People moved pursuant to C.P.L. 200.70 to amend the date of the incident on the indictment from “October 20, 2015" to “on or about October 20, 2015 to October 22, 2015.” They claimed that this was a minor temporal correction that did not change the theory of the People’s case and moreover, did not prejudice the defendant. The court granted the application over the defense objection that it in fact did change the theory and that the defendant was prejudiced. The appellate division reversed the defendant’s second degree weapons possession conviction on the holding that the oral application to amend changed the theory of the People’s case and prejudiced the defendant. As the court noted, when the defendant was arrested on October 21, 2015, it was on a theory that he possessed the weapon in the residence of his former girlfriend on October 20, 2015. However, no weapon was recovered from his person on his arrest; a subsequent search of the defendant’s residence on October 22, 2015 resulted in the recovery of a loaded weapon. Thus, by seeking on the eave of trial to amend the indictment to include the days following the purported incident with his former girlfriend, the People changed the theory of the case from actual possession to constructive possession, meaning his exercise of dominion or control over an area of the defendant’s residence where the loaded weapon was found, notwithstanding the defense reliance on the voluntary discovery information. As such, the defense was forced to forgo an alibi-type defense.

Misdemeanor Complaints

45 People v. Monique Esposito, __ N.Y.3d __, 2019 NY Slip Op 04448 (6/6/19 [7/0; memorandum], N.Y.L.J. 6/7/19 @ p. 22.

The factual allegations in the accusatory instrument were sufficient to support the inference that the defendant was the operator of the motor vehicle involved in an accident. As such, the Appellate Term erroneously dismissed the accusatory instrument on that ground.

People v. Marvin Drelich __NY3d__, 2018 N.Y. Lexis 2982, 2018 Slip Op 06892 (10/11/18) [7/0; Memorandum].

On a People’s appeal, the Court summarily reversed the Appellate Term, First Department, holding that the accusatory instrument charging defendant with patronizing a prostitute in the third degree ( see, P.L. 130.00 [10]) was jurisdictionally sufficient. The misdemeanor information alleged that defendant requested “manual stimulation” from a woman for a sum of money on a street corner late at night. “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 . . .” The misdemeanor information provide reasonable cause and placed defendant on adequate notice of the charges. People v. Casey, 95 NY2d 354 (2000), People v. Jackson, 18 NY3d 738 (2012), People v. Dreyden, 15 NY3d 100 (2010).

Duplicitous Pleadings

People v. Peter Gerardi, __A.D.3d __, 2018 NY Slip Op 07325 (2nd Dept. 10/31/18), N.Y.L.J. 11/2/18 @ p. 28.

While certain counts of the defendant’s second degree rape and second degree criminal sexual act were valid on their face, as charged in one-month periods of time, the complainant’s testimony at trial that when she was 13 years old, the then-26 year old defendant had sexual intercourse and engaged in oral sex with her at least 20 times a month during the one month period encompassed by each of the counts rendered the charges duplicitously pled and thus void under People v. Kendl, 68 N.Y.2d 410, 417 (1986) and its progeny. The court, however affirmed the defendant’s conviction on single counts each of second degree rape and second degree course of sexual

46 conduct against a child which each involved single criminal acts and moreover, the defendant’s conviction for several counts of compelling prostitution and promoting prostitution in the second degree.

Superior Court Informations

People v. Jonathan Monforte, __ N.Y.3d __, 2019 NY Slip Op 06451 (9/1/19) [7/0; Memorandum].

The defendant’s plea to first degree manslaughter in Schenectady county court following his arrest and charge by felony complaint of second degree murder following his waiver of indictment and the filing of a superior court information [SCI] failed to conform with NY Const. Art. 1 Sec. 6 and C.P.L. 195.10, which permits a waiver of indictment and the filing of a SCI if the defendant is not charged by a crime in a felony complaint punishable by either death or life imprisonment. Thus, his purported waiver of indictment and subsequent guilty plea pursuant to the filed SCI was not in conformity with the constitutional and statutory prerequisites [see People v. Trueluck, 88 N.Y.2d 546, 551 (1996)] and resulted in a reversal of his plea of guilty, dismissal of the superior court information, the reinstatement of the original felony complaint and remand of the case to the trial court.

Speedy Trial

People v. Thomas E. Perkins, __ A.D.3d __, 2019 NY Slip Op 06516 (2nd Dept. 9/11/19).

A defendant seeking dismissal of an indicted felony case on speedy trial grounds under C.P.L. 30.30 meets his or her burden on the motion by simply alleging that the People failed to declare readiness within the statutorily prescribed period to the extent that the burden falls on the People to prove that certain periods within that time should be excluded. Thus, where the People’s response tot he motion failed to demonstrate with “unquestionable documentary proof,” that any periods of tiem should be excluded under C.P.L. under C.P.L. 210.40(5)(c). In particular the court noted that while the court could take judicial notice of a “court action sheet,” it contained only an ambiguous notation purportedly regarding the defendant’s waiver of 30.30 rights for a certain period of time such that the matter was remitted to the Supreme Court to conduct a hearing and report back to the appellate division.

47 People v. Terrell Brady, __ A.D.3d __, 2018 NY Slip Op 08678 (2nd Dept.12/19/18).

Where there were factual disputes regarding the excludability of time alleged by the defendant to have been part of an alleged 220 day period of delay in the defendant’s motion to dismiss on the ground that he was deprived the right to a speedy trial under C.P.L. 30.30, the trial court should not have summarily granted the motion without conducting a hearing on the conclusion that the People’s response failed to provide “acceptable evidence” to support their assertions of excludable time. As such, the matter was remitted to the lower court for a hearing purusant to C.P.L. 210.45(6).

People v. Jules Desselle, __ A.D.3d __, 2018 NY Slip Op 08252 (1st Dept. 12/4/18).

The first department held that notwithstanding the “substantial” 28 month day in the defendant’s attempted murder prosecution, “it was “attributable to both the People and the defense. In affirming the court noted that while most adjournments either on consent or “otherwise satisfactorily explained,” the People “failed to provide an adequate reason for their delay in responding to the defendant’s motion to compel certain medical records” involving an eyewitness who suffered from epilepsy or a seizure disorder and that the defendant was not prejudiced thereby. Justice Manzanet-Daniels, concurred in the result on her conclusion that the review of the factors outlined in People v. Taranovich, 37 N.Y.2d 442 (1975) did not warrant a finding of a denial of speedy trial but noted that the prosecutor’s “actions in this case led to the substantial and unnecessary delay” where the district attorney insisted on motion practice to compel production, missed its own filing deadlines and then ultimately lost on the motion.

People v. Ernest Mattison, __ A.D.3d __, 2018 NY Slip Op 04569 (2nd Dept. 6/20/18).

The defendant was arrested in 2012 for a Queens murder that was committed more than 31 years prior in September 1980 based on a 2008 match of latent fingerprints found on a jewelry box decedents’s bedroom. There was no match to the latent prints found on the box until a detective from the NYPD’s Latent Print Unit randomly selected the case for fingerprint analysis. Further investigation revealed that the defendant, a 17 year-old high school student at the time of the murder, was absent from school on the day of the murder. The court affirmed the defendant’s conviction and held it to be based on sufficient evidence and not against the weight of the proof and moreover held that whiel the more than 31 years of pre-indictment delay was extensive, the

48 People had a good faith basis to delay based on a lack of evidence identifying a viable suspect. Thus, balancing the people’s good cause, tghe nature of the crime and the fact that there was no period of pre-indictment incarceration, the motion to dismiss on speedy trial grounds was held properly denied.

Statute of Limitations

People v. Ricardo Cruciano, __ Misc.3d __ (Sup. Ct. N.Y.Co. 1/28/19), N.Y.L.J. 1/28/19 @ p. 21.

The court denied the defendant’s motion to dismiss several third degree rape charges against the defendant, a “prominent” pain management doctor on statute of limitations grounds on the conclusion that pursuant to C.P.L. 30.10(4)(a), the defendant, a non-resident who lived and practiced in Jersey City, New Jersey and then Philadelphia, Pennsylvania with all the indicia of residing in these locations was continuously out of New York State for 93 complete days within the applicable 5 years under People v. Knobel, 94 N.Y.2d 226 (1999), and that as such, the period tolled during that time for timeliness calculations. In so ruling ,the court rejected claims that the defendant remained domiciled in New York during this period of time on the conclusion that a defendant can “only reside in one state at one time.”

Guilty Pleas

People v. Lennox Skyers, __ A.D.3d __, 2019 NY Slip Op 05233 (3rd Dept. 6/27/19).

During a Clinton County defendant’s plea allocution to two counts of first degree assault, which would have also resolved a pending violation of probation, the defendant asserted that he was “not guilty” and that “[e]verything was an accident.” The county court terminated the plea proceeding and then adjourned the matter for trial. The next day, the defendant reappeared in court and once again indicated that he wished to go forward. After assuring the court that he had been afforded sufficient time to speak to his attorney, the defendant pleaded guilty to two counts of first degree assault. When the defendant returned to court two months later for sentencing, the defendant when given an opportunity to make a statement to the court about his sentence,

49 expressed remorse for the his crimes and moreover stated that he had “overdosed on some medications while [he] was intoxicated” that day, that he “wasn’t in [his] right state of mind,” that he “wasn’t trying to hurt anyone,” and that he “honestly did not recall what happened because after [he] took his medications [he] blacked out.” The defendant was then sentenced without objection by the court. The third department vacated the defendant’s plea on the holding that the defendant’s statements at sentencing raised the possibility of an intoxication defense and called into question the intent element of first degree assault and thus were sufficient to trigger the narrow exception to the preservation requirement. As the third department noted, while there is no mandatory catechism required at a plea or on sentencing, and a defendant is not required to recite each element of a pled-to crime, where statements made by the defendant negate an element of the crime , the trial court is obligated to conduct a further inquiry.

People v. Joel Herrera, __ A.D.3d __, 2019 NY Slip Op 02631 (1st Dept. 4/4/19).

The defendant’s plea allocution to a conspiracy to commit murder was affirmed with the court noting that the “Court of Appeals has ‘never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense, or provides a factual explanation of each element of the pleaded-to-offense,’” quoting People v. Seeber, 4 N.Y.3d 780, 781 (2005).

People v. Tryon Hollmond, __ A.D.3d __, 2019 NY Slip Op 02354 (2nd Dept. 3/27/19).

Following the defendant’s Brooklyn indictment for second degree murder and related assault charges, he was incarcerated pre-trial and moved to the Coxsackie Correctional Facility, 132 Miles north of Brooklyn and when the case was referred to a trial part, he was transferred to the Ulster County Correctional Facility which is about 100 miles north of Brooklyn. His attorney sought to have his client moved to Rikers Island, or another downstate facility and argued that the pre-trial detention of the defendant caused a denial of the basic right to counsel by virtue of his being housed in a remote location with limited telecommunication capabilities and resulted in an inability to consult, confer and plan for trial with his client. The Supreme Court ordered the defendant moved to Rikers or at a minimum to a correctional facility closer to the court and issued numerous orders to that effect over the next two weeks but they were not complied with. Each appearance required the defendant to travel at least five hours each way and the court noted that it would be nearly impossible to try the case under these circumstances. The court however,

50 stated that the trial would commence regardless of where the defendant was housed. The defendant pled guilty the very next court date but then two weeks later unsuccessfully moved to withdraw his plea. The trial court made no inquiry of the defendant regarding what was claimed to have been the lack of access to his attorney except to comment that the plea result was favorable as secured by defense counsel. The appellate division reversed on the holding that where the record substantiates the defendant’s claim that his plea was “effectively coerced” by the ongoing violation of his Sixth Amendment right to counsel, there was a genuine issue as to its voluntariness such that an inquiry was required. The appeal was thus held in abeyance and the case was remitted to the trial court to enable further proceedings, including a hearing on the defendant’s application to withdraw his plea for which new counsel should be provided with a report back to the appellate court.

People v. Samuel Keller, __ A.D.3d __, 2019 NY Slip Op 00620 (2nd Dept. 1/30/19).

Defense counsel’s erroneous advice that the aggregate maximum sentence faced by the defendant was 3 to 5 years, when in actuality it was only 2 to 4 years, rendered the defendant’s subsequent guilty plea with an agreed upon sentence of 1 ½ - 3 years involuntary due to the threat of a higher sentence if convicted at trial.

Immigration Consequences

People v. Robert Olivarez, __ A.D.3d __, 2019 NY Slip Op 05092 (1st Dept. 6/25/19).

Although immigration consequences warning “ordinarily” are required whether a defendant is a citizen or not [People v. Palmer, 159 A.D.3d 118, 121 (1st Dept. 2018)], where the defendant was advised of a notice of immigration consequences at his arraignment by the People, six months before his plea of guilty to bail jumping, here the defendant “purposefully misrepresented to counsel and both plea courts” that he was a United States citizen. As such, under People v. Brazil 123 A.D.3d 466, 467 (1st Dept. 2014) and unlike the defendant in Palmer there was nothing to suggest the defendant suffered from any mental impairment.

People v. Devon C. McDonald, 167 A.D.3d 430, 2018 NY Slip Op 08266 (1st Dept. 12/4/18).

51 Although counsel rendered deficient advice regarding the immigration consequences of his plea of guilty for possession of stolen property when he stated that he told the defendant he “might” be deported,” the court immediately corrected counsel’s “error” and advised that the defendant “will” be deported as a result of the plea and the defendant confirmed that he understood this. As such, the court held that in light of the trial court’s “plain warning” that was not undercut by counsel [see United States v. Lee, 137 S.Ct. 1958, 1968, fn. 4 (2007)], there conviction was affirmed without a remand.

People ex rel. Jordan Wells on Behalf of Susai Francis v. DeMarco, __ A.D.3d __, 2018 NY Slip Op (2nd Dept. 11/14/18) [Sheinckman, P.J.], N.Y.L.J. 11/15/18 @ p. 1 & 11/20/18 @ p. 1.

New York Law does not permit State and local law enforcement officers to effectuate civil immigration arrests. In this case, the petitioner was arrested in Suffolk County for contempt of a Family Court Order and released. Nassau County police [NCPD] then arrested the petitioner for driving while intoxicated as a misdemeanor and an insurance violation. Thereafter, his fingerprints were submitted by the NCPD to ICE, which identified him as an overstay on a visitor visa from India in 1996. He was held first by Nassau Correctional Facility and then following his completion of his Nassau County sentence transferred to the Suffolk Correctional Facility where he was held on an ICE civil detention warrant. The court granted the petitioner’s state habeas application and in so doing rejected claims of mootness on the grounds that the issues presented were both novel and significant, and that the because the ICE civil detainer warrants were merely adminsterial, they were not judicial and moreover did not authorize state and local law enforcement officials to arrest and detain under state statutory law, notably CPL 120.10 (warrants of arrest), CPL 210.10 (superior court warrants of arrest) and CPL 530.70 (bench warrants). The court also drew a distinction between other warrants that authorize arrests in civil matters (i.e., certain family court matters, CPLR 5250 (a warrant of arrest of a debtor who absconds with property), CPLR 2308 (failure to comply with a subpoena), Judic. Law. 772 (contempt punishment) and Mental Hygiene Law 9.43 (warrant for a mentally ill person who could harm self or others) and in particular, rejected claims that such arrests, were authorized by resort to “residual police power,” “the “fellow officer rule,” or F.R.Cr.P.4c(1) which permits state and locla law enforcement to execute federal arrest warrants that are signed by a magistrate, without a written agreement (as opposed to an informal agreement, as here), between a local law enforcement agent and the Department of Homeland Security under Immigration and Nationality Act 287(g).

People v. Eddie Ghingoree, __ A.D.3d __, 2018 NY Slip Op07748 (2nd Dept. 11/14/18).

52 The court reversed the defendant’s seventh degree narcotics possession conviction entered by plea of guilty following a remittal to and report from the county court on the conclusion that the defendant failed to receive effective assistance of counsel in a case in which his attorney failed to properly inform him of the immigration consequences of his plea of guilty by advising him that his plea of guilty would be “immaterial” since the defendant was already in immigration proceedings with the Department of Homeland Security as a result of a prior deportable offense and where the record was sufficient to establish that but for counsel’s errors, there was a reasonable prob ability that the defendant- who lived in this country since the age of four and has significant family ties, including wife and three children, as well as parents and siblings - would not have pleaded guilty.

People v. Aftab A. Malik, __ A.D.3d __, 2018 NY Slip Op 07452 (2nd Dept. 11/7/18).

The defendant’s motion to vacate his judgment of conviction following his plea to reckless endangerment in Queens County with a promise of sentence of probation if he successfully completed a program based on a claim under C.P.L. 440.10(1)(h) that his attorney provided ineffective assistance of counsel based on an incorrect statement that he would not be subject to deportation as a consequence of the plea should have been the subject of a hearing where the defendant raised sufficient questions of fact. Thus, where the defendant alleged by affidavit that is attorney told him he would not be deported and the attorney asserted that he had no independent recollection of anything about the case other than the defendant’s name and moreover the attorney’s claim that since September 11, 2001, it was his practice to advise non- U.S. citizen pleading clients to consult an immigration attorney prior to any plea and the defendant claimed no such advice was ever transmitted, the case there was a sufficient factual issue regarding both prongs of Strickland v. Washington, 466 U.S. 668, 687-688 (1984) and Padilla v. Kentucky, 559 U.S. 356 (2009) [i.e., objective reasonableness of the lawyer’s representation and prejudice, such that he would not have pleaded guilty if he had received the proper advice], to require that the case be remanded for a hearing.

People v. Gilroy Johnson, __ A.D.3d __, 2018 NY Slip Op 07072 (1st Dept. 10/23/18).

The defendant was deprived of effective assistance of counsel when his attorney failed to advise him that his guilty plea to aggravated felonies, first degree burglary and robbery, would result in his mandatory deportation but instead advised him that his plea would have “immigration consequences,” “would impact his ability to stay in the country,” and probably very well end up with [defendant] being deported from this country.” In reversing, remanding and holding the appeal in abeyance, the court held that the defendant would be afforded an opportunity to move

53 to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had been made aware of the deportation consequences.

Issues Forfeited by Plea

People v. Rohan Manragh, __ N.Y.3d __, 2018 NY Slip Op 07924 (11/20/18) [7/0; Memorandum].

Where the defendant’s plea of guilty to an indictment was entered voluntarily, knowingly and intelligently, his contention on appeal that the plea was entered involuntarily and the indictment must be dismissed because the prosecutor failed to notify the grand jury of his request to call a particular witness and failed to allow the grand jury to vote whether to hear that witness in violation of C.P.L. 190.50(6), was forfeited and thus, not reviewable on appeal. In affirming an appellate division order [150 A.D.3d 762 (2nd Dept. 2017)], the Court held that the sxclusion of such testimony before the grand jury did not presnt a constitutional defect implicating the intergity of the process, the claim was deemed forfeited by the plea. Judge Rivera, joined by Judge Fahey, concurred with the result but would not have held that the claim was forfeited, the majority ignored the two-step process provided for in C.P.L. 210.35(5), involving the dismissal of an indictment based on an impairment of the integrity of the grand jury and possible prejudice to the defendant [“may result”], the purported witness’s testimony would have been largely inadmissible and moreover would have been at least in part, have been inculpatory.

Effective Assistance of Counsel

People v. Carlos Rodriguez, __ A.D.3d __, 2018 NY Slip Op 08358 (1st Dept. 12/6/18).

Before the defendant’s criminal court arraignment on charges of forcible touching and third degree sexual abuse, the prosecutor proposed a misdemeanor disposition. Assuming, without deciding that counsel should have warned the defendant that he could be indicted for persistent sexual abuse and if convicted, sentenced to a term of three years to life as a persistent felony offender, the defendant failed to establish that he was entitled to this plea under Lafler v. Cooper, 566 U.S. 156, 164 (2012) and Missouri v. Frye, 566 U.S. 134, 147 (2012), where there was no indication that the court would have accepted the more beneficial disposition, in a case in which

54 the defendant was indeed convicted of persistent sexual abuse and sentenced as a persistent violent felony offender to a term of three years to life.

Waivers of Appeal

People v. Upali Pelige, __ A.D.3d __, 2019 NY Slip Op 04204 (2nd Dept.5/29/19.

The appellate division first held that the defendant’s purported waiver of the right to appeal was not valid because the trial court’s inquiry was “terse” and the written waiver was insufficient. Thereafter it held that the defendant’s plea proceeding failed to indicate a specific sentence promise or recommendation and that thus, notwithstanding that both parties agreed that the promised sentence was 15 years with 5 years post-release supervision, the first formal indication of that sentence was at the sentencing proceeding and that this coupled with and incomplete pre- sentence report and the defendant’s psychiatric history required a conclusion that the sentence had to be fully considered in the court’s discretion. As such, the case was remanded for re- sentencing.

People v. Moussa Bakayoko, __ A.D.3d __, 2019 NY Slip Op 05677 (2nd Dept. 7/19/19).

Given the defendant’s age of 20 years, that he had dropped out of school in the 11th grade, that he had documented mental health issues, and his limited experience with the criminal justice system, the trial court’s “terse colloquy” regarding the defendant’s purported appeal waiver was insufficient to conclude that the defendant validly waived his right to appeal. As the court noted, a written appeal waiver, as here, was insufficient since it was “not a complete substitute for an on-the-record explanation of the nature of the right to appeal,” quoting People v. Latham, 162 A.D.3d 1068, 1070. Thus, the appellate division reduced the defendant’s sentence of 3-6 years due to “potential immigration consequences,” notwithstanding that the sentence had been already served to a sentence of 364 days.

55 People v. Anardo Batista, __ A.D.3d __, 2018 NY Slip Op 07445 (2nd Dept. 11/7/19, N.Y.L.J. 11/9/18 @ p. 23.

The appellate division, per Leventhal, J., held that a defendant’s waiver of the right to appeal following the defendant’s plea of guilty to first degree with a promise of a sentence between fourteen and seventeen years incarceration plus post-release supervision, in a case in which trial court explained the waiver that was supplemented by a written waiver of the right to appeal, was valid under People v. Sanders, 25 N.Y.3d 337 (2015) and People v. Ramos, 7 N.Y.3d 737 (2006), to foreclose any review of the claimed excessiveness of his sentence of sixteen years, plus five years post-release supervision. In so ruling, the court took the opportunity to urge trial courts to give greater attention to the colloquy used in such waivers, and in particular, use the CJI and Model Colloquies. Presiding Justice Scheinkman concurred in Justice Leventhal’s opinion in a separate opinion also, joined in by all the justices on the panel with an analysis of the practice as actually an “appeal limitation,” with his separate recommendation that trial judges take the time to properly effectuate appeal waivers without a delegation of its responsibilities to the prosecutor with the use of the model colloquy. The case is discussed in A. Denney, “ NY Appeals Judges Say Trial Courts Should Act to Quell Appeals,” N.Y.L.J,. 11/13/18 @ p. 1, L. Cunningham, “In Defense of Appeal Waivers,” N.Y.L.J. 11/27/18 @ p. 6, and R. Acosta, “First Department Takes Different Approach to Appeal Waivers,” N.Y.L.J. 12/11/18 @ p. 6.

Judicial Involvement in Plea Negotiations

People v. Agape A. Towns, __ N.Y.3d __, 2019 NY Slip Op 03527 (5/7/19) [7/0 Stein, J.], N.Y.L.J. 5/8/19 @ p. 24.

The Court of Appeals held that the conduct of the trial court in personally negotiating and entering into a quid pro quo cooperation agreement with the co-defendant over repeated objections of the defendant on trial in Monroe County for robbery whereby the court promised to sentence the co-defendant within a specific range in exchange for his testimony against the defendant, the court “abandoned its role of a neutral arbiter and assumed the function of an interested party and that because of a “specter of bias” reversal was required. In so ruling the Court reversed a fourth department order that had strongly criticized the trial judge but did not order reversal [151 A.D.3d 1638 (4th Dept. 6/9/17)]. The Court of Appeals also noted that the error was exacerbated by the elicitation of testimony from the co-defendant that he had “not entered into a cooperation agreement with the prosecutor or anyone else from the District Attorney’s office,” [emphasis in original], and moreover, by instructions to the jury that advised

56 them that the court itself had made an agreement with the co-defendant. Thus, the trial court’s conduct was held to have “conflicted impermissibly with then notion of fundamental fairness,” [quoting People v. Novak, 30 N.Y.3d 222, 226 (2017)], by effectively procuring a witness for the People. Judge Rivera concurred and moreover noted that even where the trial judge had no personal interest in the case, his conduct was biased.

Motions to Dismiss

Interest of Justice

People v. Gavel Burke, __ A.D.3d __, 2019 NY Slip Op 05991 (2nd Dept. 7/31/19).

While the trial court did not improvidently excercise its discretion in considering the merits of the defendant’s motion to dismiss an indictment in the furtherance of justice pursuant to C.P.L. 210.40 even though it was made in excess of the 45 days provided for motions under C.P.L. 255.20 where there was good cause, the court should not have dismissed the indictment without a hearing where there was essential facts in dispute. As such the order was reversed on a People’s appeal and the case remitted to the lower court to conduct a hearing.

Evidence

Confrontation

People v. Luis Cosme, __ A.D.3d __, 2019 NY Slip Op 04469 (1st Dept. 6/6/19).

The trial court properly admitted a limited portion of a non-testifying victim’s medical records in which he reported that he had been struck with ah handgun on a holding that there was no violation of either the hearsay rule or the Confrontation Clause in a robbery and related-crimes trial. In affirming, the first department noted that the particular type of object that was used to cause the victim’s and thus was relevant to treatment and diagnosis and moreover, the records were not prepared in anticipation of litigation.

57 People v. David Gonsalves, __ A,.D.3d __, 2019 N.Y. App. Div. Lexis 1716 (2nd Dept. 3/13/19).

The appellate division reversed the defendant’s conviction arising out the gunpoint hold-up of a Brooklyn barbershop during which time keys and a cell-phone were stolen, due to the erroneous introduction of testimony that several days after the robbery, the defendant’s step-father came to the barbershop and said that he was “sorry” for what the defendant had done, to return the victim’s keys and to offer the victim a replacement cell-phone on the holding that where there was no proof the defendant participated in or was in any way connected to the step-father’s actions, this evidence was improper. Additionally, the court held that the testimony of an investigating detective that an anonymous informant who was an eyewitness to the crime identified the defendant by name (purportedly introduced as background as to how and why the police pursued the defendant), went “well beyond permissible bounds,” and thus violated the defendant’s Confrontation rights.

People v. Moreno-Grantini, 167 A.D.3d 471 (1st Dept. 2018).

Although the defendant failed to preserve his claim that statements made by a stabbing victim to a responding police officer violated the Confrontation clause, the court, in the alternative held that they were obtained to determine what happened and ensure the safety of other persons pursuant to Davis v. Washington, 547 U.S. 822 (2006) and its progeny. Thus, where statements were made to a police officer who “encountered a frantic victim with a stab wound, and was told that the defendant was the perpetrator and was on the loose,” the statements by a non-testifying witness were non-testimonial because they were made to an officer whose primary purpose was to determine what happened and to ensure the safety of other persons. Moreover, the fact that the defendant was arrested prior to the statement did not change this holding since there was no evidence that the officer who took the statement was aware of that fact.

People v. Wayne Stokeling, 163 A.D.3d 1180, 2018 NY Slip Op 07158 (2nd Dept. 10/24/18).

The trial court should not have permitted the People to present the testimony of a New York State Department of Motor Vehicles supervisor (DMV), who testified about the department’s process of mailing notices of revocation and/or suspension, that an order of suspension was

58 mailed to the defendant in 1999 and moreover, outlined the procedures related to mailing and that “upon information and belief,” the notice was in fact mailed to the defendant in a case in which she admitted she had no personal knowledge of these events. In reversing the defendant’s aggravated unlicensed operation of a motor vehicle conviction, the appellate division held that this testimony violated the defendant’s right of confrontation under CPLR 4518(a), CPL 60.10 and People v. Pacer, 6 N.Y.3d 504 (2006). See also Crawford v. Washington, 541 U.S. 36 (2004), especially where the defendant was never given the opportunity to examine the DMV employee who was directly involved in sending out suspension notices and who had personal knowledge of the defendant’s driving record and where the DMV employee’s testimony improperly established an essential element of the crime. Leave to appeal to the Court of Appeals has been denied. 32 N.Y.3d 1128 (2019).

Vanessa Stuart v. Alabama, __ U.S. __ (11/19/18) Dissent From Denial of Petition of Certiorari.

Justice Gorsuch, joined by Justice Sotomayor dissented from the denial of a petition of certiorari in a case in which a state prosecutor did not present the testimony of the forensic analyst who performed a blood alcohol test, but a different analyst, who, using the results of the test that was introduced in evidence, estimated the defendant’s blood alcohol level hours earlier when she was driving on the theory that the report and testimony were not offered for the truth but only to provide the expert a basis for estimating the defendant’s blood alcohol. These Justices would have granted review in order to provide greater clarity in this area. See Williams v. Illinois, 567 U.S. 50 (2012), discussed as the Court’s most recent opinion in this area. See also People v. Austin, 30 N.Y.3d 98 (2017) and People v. John, 27 N.Y.3d 294 (2016) for the most recent Court of Appeals cases on this issue. See. “Gorsuch, Sotomayor Team Up to Champion a Scalia Cause,” N.Y.L.J. 11/21/18 @ p. 2, which discusses the opinion.

State of Mind

People v. Christopher Reed, 169 A.D.3d 573 (1st Dept. 2/26/19).

The Trial court properly admitted evidence that shortly before a Bronx homicide in the defendant’s building not attended by the defendant, a non-testifying declarant stated tot he victim and others that she sould make a phone call and have them all killed. Thus, citing, NY Guide to Evidence 8.41, this testimony was not admitted to show that the declarant actually had the power to compel someone to kill the victim or that the declarant, who was not charged with a crime,

59 actually solicited the defendant to do so, but was instead admitted to show the declarant’s state of mind, that is her anger toward the victim on that occasion. This was relevant because there was evidence that supported an inference that the declarant had conveyed her anger to the defendant and in turn this supplied a possible motive.

People v. Maurice Eaddy, 167 A.D.3d 428, 2018 NY Slip Op 08264 (2nd Dept. 12/4/18).

Although the defendant failed to properly preserve the claim on appeal, the first department on an alternative holding concluded that the testimony of the victim’s friend in a course of sexual conduct against a child trial was properly admitted under the state of mine exception to the hearsay rule and as a proper description fo the victim’s demeanor. Additionally, the court held that the victim’s teacher’s testimony about the victim’s disclosure was properly admissible for the “relevant, non-hearsay purpose of explaining the investigative process and completing the narrative of events leading to the victim’s arrest,” quoting, People v. Ludwig, 24 N.Y.3d 221, 231 (2014) and that in any event, any error in admitting both forms of evidence was harmless where the victim was extensively cro-ss-examined and where the jury is presumed to have only considered legally competent evidence adduced at trial. Leave to appeal to the Court of Appeals was denied on 2/5/19.

Excited Utterance

People v. Shannon Smith, 2019 NY Slip Op 02911 (2nd Dept. 4/17/19).

The trial court properly allowed the admission of a recording of a call to a 911 emergency number by the father of the then-15 year old victim in a Queens attempted murder trial n the holding that although the caller’s statements were indeed hearsay, they were nonetheless made contemporaneously or immediately after a starting event as the event was unfolding and thus were either as excited utterances or as a present sense impression.

People v. Phillip Carr, 168 A.D.3d 551, 2019 NY Slip Op 00389 (1st Dept. 1/22/19).

The court properly exercised its discretion in admitting a police officer’s testimony in a Bronx murder and related crimes trial that immediately after the shooting of an unidentified woman in a

60 mini-van, who was “hysterical,” leaned out of the window and screamed, “That’s him with the black hoody running. He was shooting over there,” as an excited utterance where the surrounding circumstances indicated that the declarant personally observed the event and that she was not passing the information along from someone else. In affirming, the appellate division also noted that while certain references in the plea minutes of two cooperating witnesses relating to the plea court’s expressing an opinion on this defendant’s guilt and the dangers of testifying against him should have been redacted, the remainder of the transcripts were properly admitted to set forth the cooperation agreements with these witnesses and in any event, any error in this regard was harmless due to the overwhelming proof of guilt. Finally, the first department also held that objections regarding certain “nonverbal hearsay” from two other declarants were not properly preserved or in the alternative, properly admitted as an excited utterance and moreover were admitted not for the truth but for “legitimate non-hearsay explanatory purposes.”

Present Sense Impression

People v. Omar Hutchinson, 167 A.D.3d 253, 2018 NY Slip Op 8326 (2nd Dept. 12/5/18).

The trial court properly admitted into evidence a recording of the complainant’s telephone call to the 911 emergency number under the present sense impression excption to the hearsay rule during the defendant’s Queens kidnaping and robbery case since the complainant’s statements were sufficiently contemporaneous to the events being described and were also sufficiently corroborated by the evidence presented at trial. In affirming the appellate division also held that the trial court also correctly determined to admit into evidence the recording of the 911 call placed by the complainant’s wife where the caller relayed information she had personally experienced and where the she was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication. See People v. Cummings, 31 N.Y.3d 204 (2018) relied on by the court on the latter point. Leave to appeal to the Court of Appeals was denied on 2/25/19.

Past Recollection Recorded

People v. Carlos Tapia, __ N.Y.3d __ (4/2/19) [4/3; DiFiore, C.J.], N.Y.L.J. 4/3/19 @ p. 22.

A police lieutenant observed the defendant “body slam” the victim in the street in the Bronx outside a bar at about 3:00 a.m. in what appeared to be a fight involving broken beer bottles. When the trial was finally conducted the lieutenant had retired for the police department. Defense counsel timely indicated that if the lieutenant were not called to testify, a missing witness instruction would be requested. The lieutenant had no independent recollection of the incident.

61 Because this witness could not independently recall the incident, the People sought to have the lieutenant’s prior grand jury testimony introduced at trial as a past recollection recorded. Defense counsel objected, claiming that the witness’s claimed lack of memory and admitting the grand jury testimony would violated the defendant’s right to confrontation and moreover that the admission would violate C.P.L. 670.10. Defense counsel declined to withdraw the missing witness request but “inconsistently” asserted that the lieutenant was available for the charge but due to his memory loss, unavailable for Confrontation purposes. The lieutenant was called to testify but could only recall that he was working a certain tour that night and that he participated in the defendant’s arrest but that he could not recall the incident itself. The trial court then permitted the introduction of the witness’s grand jury testimony which was consistent with his trial testimony plus the added fact that he saw the defendant kick the victim in the head. The court did so with a limiting instruction that the prior grand jury testimony was “not in and of itself independent evidence of the facts contained therein,” and that it was “auxiliary to the testimony of the witness.”A majority of the Court held 5-2 that the trial court did not abuse its discretion in admitting the witness’s prior grand jury testimony as past recollection recorded to supplement that witness’s testimony at trial where there was a proper foundation for the receipt of this proof. In so ruling, the majority rejected claims that this evidence violated the Confrontation Clause on the holding that the declarant was a live witness at trial and that the admission violated C.P.L. 670.10. Judge Rivera, joined by Judges Wilson and Fahey dissented on the conclusion that dating back to the trial of Aaron Burr in 1807, such prior testimony has been held inadmissible due to the lack of effective cross-examination and moreover that introduction violated C.P.L. 670.10. Compare, People v. Troy Folk, 2019 NY Slip Op 04321 (1st Dept. 6/4/19) [GJ testimony held erroneously admitted as past recollection recorded where no foundation such testimony properly represented witness’s recollection and knowledge when made].

Adoptive Admissions

People v. Breeze King, __ A.D.3d __, 2019 NY Slip Op 03813 (5/15/19).

The defendant’s Brooklyn murder conviction was affirmed over claims that the trial court should not have permitted the People to introduce in evidence, as an adoptive admission of guilt, a recording of a telephone call that he made to his mother while he ws incarcerated at Rikers Island. While the appellate division held that the People failed to establish that the defendant assented to the statements uttered by his mother during the call, and thus the foundation was insufficient, the second department also held that the error was harmless due to the overwhelming proof of guilt.

Molineux

62 People v. Robin Hamilton, __ A.D.3d __, 2019 NY Slip Op 06153 (2nd Dept. 8/29/19).

The trial court properly excercised its discretion in admitting evidence of uncharged robberies committed in Queens as part of a closely connected series of crimes, including the robbery, burglary and kidnaping crimes tried in Manhattan that occurred over several days and involved the same participants. Thus, details of the uncharged crimes, such as involvement of certain cars associated with the defendant, and the same accomplices, provided circumstantial evidence of identity. Indeed, as the court also noted, the defendant made a confession that directly implicated her in at least one of the Queens crimes that could have reasonably been construed as admitting the entire series of robberies. In affirming the appellate division also held thaty the trial court also properly admitted a conditional examination under C.P.L. 670.10 of a People’s witness who was outside the country and could not be reasonable diligence be brought before the court, where the same defense attorney had a sufficient opportunity to cross-examined as would ordinarily be the case.

People v. Frank W. White, __ A.D.3d __, 2019 NY Slip Op 04426 (2nd Dept. 6/5/19), N.Y.L.J. 6/7/19 @ p. 32.

Testimony regarding the defendant’s uncharged criminal behavior was relevant to his intent to sell cocaine and heroin, as alleged by the People he possessed at the time of his arrest as Molineux proof. Thus, where this proof was relevant to an element of a crime for which he was tried, third degree possession of narcotics, and moreover, was relevant as background evidence to explain to the jury the relationship between the witnesses who provided the testimony and the defendant.

People v. Mark Henry, __ A.D.3d __, 2019 NY Slip Op 04723 (2nd Dept. 6/12/19).

The trial court properly permitted the People to elicit uncharged evidence of a June 2012 incident between the defendant and the older of two child complainants in a case involving multiple counts of criminal sexual acts that were allegedly committed by the defendant against extended family members where the proof was relevant to “complete the narrative of the events charged and to provide necessary background information, including the nature of the relationship between the defendant and the older complainant, and the older complainant’s sexualization.”

63 See also, People v. Anthony Durant, __ A.D.3d __, 2019 NY Slip Op 04716 (2nd Dept. 6/12/19), for a similar ruling.

People v. Ismael Suarez, __ A.D.3d __, 2019 NY Slip Op 03012 (1st Dept. 4/23/19).

Citing People v. Rivera, 96 N.Y.2d 749, 751 (2001), the first department held that the trial court properly admitted a wanted poster that contained still photographs from a surveillance video, as background information that completed the narrative of the events leading up to the defendant’s apprehension in a Manhattan burglary trial. The court however, did hold that the trial judge improvidently exercised his discretion in refusing to redact the written description of the suspect contained in the wanted poster but the error was harmless since the arresting officer testified that he recognized the defendant based on the still photograph rather than the written description. Finally, the appellate division also held that the lower court properly admitted a photograph of the defendant from a prior arrest, depicting him wearing a distinctive jacket that matched the jacket worn by the suspect in the surveillance video without granting the defense “unelaborated” request for a hearing as to whether that prior arrest was lawful on the holding that since hearings are not automatic or generally available for the asking, there was nothing to suggest that the prior arrest might have been unalwful where the only information availanle was that the defendant had pleaded guilty in the prior case without litigating any suppression issues.

People v. James Forbes, 166 A.D.3d 414 (1st Dept. 11/8/18).

Still photographs from a restaurant surveillance videotape, showing defendant present in a Manhattan restaurant approximately two months before one of the charged theft crimes was committed there, were held relevant to prove that defendant was familiar with the layout of the restaurant and that he did not mistakenly believe he was permitted to enter the "employees only" basement. However, the accompanying testimony of the restaurant owner, strongly suggesting that defendant had committed a crime on the earlier occasion, should have been excluded. Nevertheless, this brief and limited testimony, the prejudicial effect of which was minimized by the court's appropriate limiting instructions, was similarly harmless. The Court of Appeals has granted leave to appeal in this case with the defendant raising the issue of identity and modus operandi proof. 2019 N.Y. Lexis 315 (1/29/19) [Wilson, J.].

64 People v. Carla Scott, __ A.D.3d __, 2018 NY Slip Op 07157 (2nd Dept. 10/24/18).

While the trial court erroneously permitted the People to introduce certain text messages transmitted by the defendant to a third party in the hours immediately preceding the defendant’s involvement in leaving the scene after a in a vehicular fatality and in which she accelerated her car into a person who was romantically involved with the same man as the defendant (presumably on a completion of the narrative or background proof), because they were indicative of the defendant’s propensity for violence and the possible prejudice outweighed any probative value, the error was harmless in light of the overwhelming proof of guilt.

People v. Tyrone Lee, __ A.D.3d __, 2018 NY Slip Op 06766 (2nd Dept. 10/10/18).

The appellate division affirmed the defendant’s conviction for scheme to defraud and related crimes based on proof that the defendant’s accomplice obtained personal customer information through her employment at Wachovia Bank and the defendant used that information to effectuate fraudulent counter withdrawals from the bank. In so ruling, the court held that the trial court properly admitted evidence of the defendant’s subsequent bad acts related to a similar scheme involving JP Morgan Chase Bank as probative of the defendant’s identity as the perpetrator of the Wachovia Bank scheme and his acting in concert with his accomplice under, among several cases, People v. Arafet, 13 N.Y.3d 460, 466 ((2009).

Sirois

People v. Samuel Walton, __ A.D.3d __, 2019 NY Slip Op 00623 (2nd Dept. 1/30/19).

The appellate division affirmed the defendant’s murder conviction arising out of a July 4th Brooklyn shooting that resulted from a verbal altercation over claims that the trial court erroneously permitted the People to present the un-cross-examined testimony of a prosecution witness, the defendant’s cousin, who refused to testify out of fear retaliation by the defendant under Holtzman v, Hellenbrand, 92 A.D.2d 405, 415 (2nd Dept.), and related cases. In so ruling, the court held that the People presented clear and convincing proof in a Sirois hearing that the defendant’s misconduct resulted in the refusal of the witness to testify based on telephone calls made by the defendant rom Rikers Island to certain telephone numbers of other relatives, the defendant boasting to another inmate that he was going “beat the charges” because the “put the

65 wolves out on the witness,” and testimony from an ADA who interviewed the witness, who indicated that he had been threatened and was refusing to testify. The court also rejected claims that the 34 month delay between the 2009 murder and the defendant’s arrest almost three years later deprived the defendant of his constitutional right to a speedy trial where the delay was justified principally by the People’s good faith efforts to investigate and where the defendant was not incarcerated during that time.

People v. Neale, __ Misc.3d __ (Sup. Ct. Queens Co. 2018), N.Y.L.J. 11/9/18 @ p. 21.

The court granted the People’s Sirois application to introduce the grand jury testimony of an eyewitness in a Queens shooting murder who was no longer able to identify the defendant at trial based on the misconduct of the defendant’s private investigator.

Rule of Completeness

People v. Robert Cartagena, 170 A.D.3d 451 (1st Dept. 3/7/19).

The trial court properly granted the People’s application to admit only certain text messages between the defendant and his girlfriend in order to demonstrate a timeline and thus the defense argument that all of them should have been admitted under the rule of completeness [see People v. Dlugash, 41 N.Y.2d 725, 726 (1977) was properly rejected where the admitted messages contained no admissions that had to be explained by way of the redacted self-explanatory messages.

Best Evidence

People v. Frederic Badji, 171 A.D.3d 499 (1st Dept. 4/9/19).

The first department affirmed the defendant’s grand larceny, attempted grand larceny and stolen property conviction in a case arising out of the defendants’ alleged unauthorized use of a victim’s Uber account. While not noted in the opinion, the Court of Appeals, per Garcia, J., granted leave to appeal on, among other issues, whether the best evidence rule applied to video stills where the People did not introduce the video surveillance recording from which the video stills were taken [2019 N.Y. Lexis 2062].

66 Authentication of Evidence

People v. Matthew Gunther, __ A.D.3d __, 2019 NY Slip Op 04197 (2nd Dept. 5/29/19).

The county court properly determined to admit certain bank statements in evidence through the testimony of a bank records custodian during the defendant’s Westchester larceny and forged instrument trial on proof that the custodian was familiar with the bank’s record-keeping practices, that the records were made in the regular course of hte bank’s business, that it was the regular course of business for the bank to make such records and that the records were made contemporaneously with the transactions reflected in them. As such, they were properly authenticated under C.P.L.R 4518, People v. Kennedy, 68 N.Y.2d 569, 579-580, and its progeny. Additionally, the appellate division held that computer reproductions of bank withdrawals slips were properly admitted in evidence on testimony that they were “scanned to store a digital image” of a hard copy document under People v. Kangas, 28 N.Y.3d 984, 985, quoting, C.P.L.R. 4539(b), and moreover on testimony regarding the prevention of tampering or degradation.

People v. James Thomas, 172 A.D.3d 442, 2019 WL 1938535 (1st Dept. 5/1/19), N.Y.L.J. 5/6/19 @ p. 22.

Recordings of prison phone calls were sufficiently authenticated in the defendant’s Bronx robbery trial by a Department of Correction Investigator “establishing that the recordings what they purported to be based on the standard procedures employed by” the correctional facility, which included a policy against making any alterations to the phone call recordings and retaining the recordings pursuant to a chain of custody protocol, quoting People v. Rodriguez, 166 A.D.3d 459, 460 (1st Dept. 2018). Thus, where this “knowledgeable witness” gave detailed testimony about the recording process, it was not necessary for him to have acquired “any particular knowledge of the particular phone calls or recordings at issue before he examined the relevant records in preparation for his testimony,” because “gaps in the chain of custody may be excused when circumstances provide reasonable assurances of the identity and unchanged condition of the evidence,” quoting People v. Hawkins, 11 N.Y.3d 484, 494 (2011).

Electronic Evidence-Social Media

67 People v. Perry Pendell, __ N.Y.3d __, 2019 NY Slip Op 021252 (3/21/19) [7/0; Memorandum].

Relying on People v. Byrnes, 33 N.Y.2d 343, 347 (1974), the Court affirmed the Third Department’s ruling at 164 A.D.3d 1063 (3rd Dept. 2018) and held that the trial court properly exercised its discretion in admitting certain contested photographs after they were “sufficiently authenticated through the testimony of the complainant and law enforcement agents who extracted the photographs from the defendant’s cell phone and computers.” See also People v. Price, 29 N.Y.3d 472 (2017) for a recent major Court of Appeals case concerning the admissibility of social media evidence.

People v. Nancy Enoksen, __ A.D.3d __, 2019 NY Slip Op 06212 (2nd Dept. 8/21/19).

The trial court properly permitted the People to introduce into evidence a document created by the complainant reflecting a series of text messages between the complainant and the defendant. The complainant’s testimony that the text messages were accurately and fairly reproduced was sufficient to authenticate the document under People v. Cotto, 164 A.D.3d 826 (2nd Dept. 2018), People v. Green 107 A.D.3d 915, 916-917 (2nd Dept. 2013), and People v. Agudelo, 96 A.D.3d 611, 612 (1st Dept. 2012).

Gang Affiliation

People v. Justin Sarkodie, __ A.D.3d __, 2019 NY Slip Op 03628 (2nd Dept. 5/8/19).

The trial court properly exercised its discretion to admit evidence relating to the defendant’s gang affiliations where it was probative to explain the relationships of the individuals involved in his Brooklyn murder and weapons possession trial and where the value of the testimony outweighed any prejudice resulting from its admission.

Experts

68 People v. John Wakefield, 175 A.D.3d 158, 2019 NY Slip Op 6143, 2019 N.Y. App. Div Lexis 6143 (3rd Dept. 8/15/19) [#107724].

The trial court properly held, following a Frye hearing in aa Schenectady County murder case that expert DNA evidence from a company, Cybergentics regarding TrueAllele evidence, which, after testing resulted in a statistical conclusion that there was a high degree of probability that DNA evidence found on the body, and on certain objects found on the body (a guitar amplification wire, the victim’s t-shirt and the victim’s forearm), was the defendant’s [47 Misc.3d 850 (Sup. Ct. Schenectady Co. 2015)]. In affirming the court held that there was sufficient demonstration in the record that TrueAllele was generally accepted in the relevant scientific community. In so ruling, the third department rejected the defendant’s appellate claim that the Frye hearing conclusion was a “farce” because the defense did not have the source codes for the TrueAllele statistical analysis, and moreover that the admission of the TrueAllele report, while testimonial, did not violate the Confrontation clause, since the computer that generated the report was not the declarant, notwithstanding a trial court limitation on the cross-examination of the expert who did testify.

People v. Levan Easley, 171 A.D.3d 185, 2019 NY Slip Op 02445 (2nd Dept. 4/3/19).

The trial court properly exercised its discretion in denying the defendant’s motion to conduct a Frye hearing to determine the admissibility of testimony relating to the forensic statistical tool [FST] used to evaluate the likelihood that the DNA mixture found on the trigger of a firearm that was the subject of the defendant’s Queens weapons possession prosecution where at the time of the court’s ruling, a court of coordinate jurisdiction had determined that FST was not a new or novel scientific technique, “but a computer program that uses accepted mathematical equations based on Bayes’ Thorem to calculate the likelihood ratio of obtaining a recovered mixture of DNA if the suspect is a contributor versus the probability of getting the same mixture if the suspect is not a contributor,” quoting, People v. Garcia, 39 Misc.3d 482, 487-488 (Sup. Ct. Bx. Co.2013); see also, People v. Gibson, 163 A.D.3d 586 (2nd Dept. 2018); People v. Foster-Bey, 158 A.D.3d 641 (2nd Dept.), lv. grt’ed 32 N.Y.3d 937 (2018), cited by the court [“Low-Copy” DNA - FST].

People v. Jose Ortiz, 168 A.D.3d 452, 2019 NY Slip Op 00221 (1st Dept. 1/15/19).

The trial court erroneously permitted a T-Mobile subpoena compliance officer to testify that on the date of a Bronx first degree assault, two calls were made from within two miles of a cell-

69 tower by the defendant’s cell-phone and that the victim’s apartment was within a block of the cell tower in question. As, the court noted, citing People v. Littlejohn, 112 A.D.3d 67, 73 (2nd Dept. 2013), while testimony regarding the operation of cell towers and cell-site information may be offered by the testimony of qualified experts, as here, without that specialized knowledge such proof may not be presented to a jury, See United States v. Natal, 849 F.3d 530, 536, fn. 6 (2nd Cir. 2017), relied on also by the court. In reversing, the court noted several other errors [including a failure to give justification charge and marshaling the evidence in an unbalanced way], notably, that the trial court improperly permitted a police officer, on two occasions, over objection to relate that one victim had identified her attackers a a “male Hispanic, bald by the name of Jose Ortiz,” since “[t]estimony by one witness [e.g., a police officer] to a previous identification of the defendant by another witness [e.g., the victim] is inadmissible,” quoting, People v. Smith, 22 N.Y.3d 462 (2013). Compare, People v. Bayron Bermudez, __ A.D.3d __, 2019 NY Slip Op 00177 (1st Dept. 1/10/19), in which the trial court permitted the girlfriend of an attempted murder victim to testify that the victim had stated that the defendant was the person who shot him where the statement was an excited utterance.

People v. Charles Okonkwo, __ A.D.3d __, 2018 NY Slip Op 08329 (2nd Dept. 12/5/18).

The court affirmed the defendant’s first degree assault and second degree manslaughter conviction on the holding that the trial court did not improvidently exercise its discretion in allowing the People’s witness to testify as an expert on the subject of traumatic injuries that the complaints suffered and the causes of those injuries and moreover that the court properly exercised its discretion in determining the admissibility and scope of the expert’s testimony.

People v. Carlos Ruiz, __ A.D.3d __, 2018 NY Slip Op 08088 (1st Dept. 11/27/18).

The trial court properly exercised its discretion in permitting an expert to explain coded language in recorded conversations between the defendant and a confidential informant in a first degree narcotics sales prosecution on the holding that it was permissible for the People to employ expert testimony to establish the coded language’s “fixed meaning ... within the narcotics world” [quoting, People v. Inoa, 25 N.Y.3d 466, 474 (2015)], instead of merely relying on what the informant claimed the words meant. In affirming, the appellate division also noted that while a fact witness may serve a dual role by providing an explanation that might otherwise ben given by an expert, “it may be preferable for testimony of this nature to come from a source other than a fact witness,” quoting, People v. Robinson, 129 A.D.3d 550, 551 (1st Dept. 2015).

People v. Jahmarley Jones, 166 A.D.3d 803, 2018 NY Slip Op 07752 (2nd Dept. 11/14/18).

70 The expert testimony conveyed by two police witnesses qualified as experts in the “history, hierarchy, practices and language of the S.N.O.W Gang, and other gangs” that related that each witness’s knowledge of this gang during the defendant’s Queens conspiracy trial was based respectively on approximately 70 to 80 debriefings and 50 debriefings of S.N.O.W. Gang members violated Crawford v. Washington, 541 U.S. 36 (1986) because the information was testimonial in nature. See United States v. Mejia, 545 F.3d 179 (2nd Cir.), United States v. Lombardozzi, 491 F.3d 61, 72 (2nd Cir.), and People v. Inoa, 25 N.Y.3d 466, 472 (2015), relied on by the court. For instance, one expert, over counsel’s objection was asked about the basis of his decision to arrest the defendant and others who had congregated in a park in a manner in which the jury was made to understand that the basis of information that the defendant was about to engage in criminal conduct was information obtained from these debriefings. Similarly, the second expert testified in a way in which testimonial hearsay was the source material for testimony regarding the gang’s purported standard operating procedure of having high-level members travel in vehicles with subordinates, carrying weapons for the purpose of gathering intelligence on the residences, schools and work places of rival gangs. As such, the defendant’s conviction was reversed and a new trial ordered. See also, People v. Justin Campbell, __ A.D.3d __, 2019 NY Slip Op 05992 (2nd Dept. 7/31/19), for a simialr ruling on a co-defendant’s case.

People v. Jeffrey Crovador, __ A.D.3d __, 2-18 NY Slip Op 07273 (1st Dept. 10/30/18).

The trial court should have permitted the defendant to introduce expert testimony to the effect that witnesses are less likely to accurately identify persons of other racial groups than persons of their own race under People v. LeGrand, 8 N.Y.3d 449, 452-454 (2007). Thus, where this robbery case turned on the accuracy of the victim’s cross-racial identification of the defendant, and there was no corroborating evidence thereto, reversal and a new trial was required. An ancillary ground to the ruling was the erroneous failure of the trial court have, on request instructed the jury on cross-racial identification under People v. Boone, 30 N.Y.3d 521, 535-636 (2017) and the court’s conclusion that on balancing the factors under People v. Pepper, 53 N.Y.2d 213 (1981) (i.e., the purpose of the rule, the reliance on the old rule and the effect on the administration of justice), the rule advanced in Boone, requiring such instruction on request, applied retroactively.

Lay Opinion

People v. Joseph Calderon, 171 A.D.3d 422, 2019 NY Slip Op 02468 (1st Dept. 4/2/19).

71 While the trial court erred in failing to sustain defense counsel’s objection to the arresting officer’s testimony during the defendant’s weapons possession trial that when viewing a surveillance tape that was too grainy to permit recognition of the defendants’ face, he could identify the defendant, where the officer was not previously familiar with the defendant, the error in admitting this “apparent lay opinion” proof was harmless where the testimony was isolated. In affirming the court also held that the officer’s un-objected-to testimony that the clothing worn by the persons depicted in the video was similar to that worn by the defendant when he was arrested was not objected-to or in the alternative did not constitute lay opinion testimony.

Right to Present Defense

People v. Toyan Grose, __ A.D.3d __, 2019 NY Slip Op 03808 (2nd Dept. 5/15/19).

While extrinsic proof tending to establish a motive to fabricate is nver collateral and may not be excluded on that ground, when the evidence is too remote or speculative of a motive to fabricate, it may be excluded. Moreover, cross examination aimed at establishing a motive to fabricate must proceed on a good faith basis. Thus, where the proposed line of inquiryduring the defendant’s robbery trial was too remote and speculative to infer a motive to fabricate, it was properly excluded by the trial court. A second issue relation to whether a judge must recuse himself/herself on a motion to controvert a search warrant signed by the that judge is discussed above.

People v. Sheron Brown, __ A.D.3d __, 2019 NY Slip Op 03066 (2nd Dept. 4/24/19).

The trial court precluded the People from presenting evidence in the defendant’s driving while ability impaired case of results from a portable breath test on the ground that the instrument was not demonstrably reliable. Thereafter, the defense sought to elicit testimony that the office who administered the test failed to follow certain protocols. The trial judge was held to have properly excluded this testimony on the ground that this evidence was irrelevant in light of the preclusion of the portable breath test results.

Trial Practices

72 Sandoval

In re New York Times v. Hon, James M. Burke, __ A.D.3d __, 2019 NY Slip Op 3903 (1st Dept. 5/16/19).

The first department denied a C.P.L.R. Article 78 application by the media to unseal the record of a Sandoval/Molinuex hearing in what was characterized as a “highly publicized prosecution of a well-known entertainment industry figure for felonious sexual misconduct” on the conclusion that the trial court’s determination that the prior uncharged sexual offenses involved were likely to be prejudicial and inflammatory and could taint the jury pool and that as such the circumstances required the sealing of the record under Matter of Gannett Co. v. DePasquale, 43 N.Y.3d 370, 380 (1977) and related Supreme Court case law.

Right to Jury Trial

People v. Saylor Suazo, __ N.Y.3d __, 2018 NY Slip Op 08056 (11/27/18) [5/2; Stein, J.], N.Y.L.J. 11/28/18 @ p. 33.

A majority of the court, per Stein, J., held that a non-citizen defendant who demonstrates that a charged crime carries the potential penalty of deportation - i.e., removal from the country is entitled to a jury trial under the Sixth Amendment. Thus, where a Bronx defendant was charged with assault in the third degree and related crimes arising out of a domestic violence incident and thereafter, contempt arising out of a failure to comply with an order of protection, he was entitled to a jury trial where deportation was possible, notwithstanding a law applicable to New York City only [C.P.L. 340.40] that permits bench trials in class B misdemeanor cases or cases, as here that are reduced to that level crime. Note that in the aftermath of this case, a bill has been introduced in the State Senate to require jury trials in cases involving class B misdemeanors. See D. M. Clark, “Bill in State Legislature Would Allow Jury Trials For Low-Level Crimes in NYC,” N.Y.L.J. 12/24/18 @ p. 1. As a follow-up, a U.S. citizen’s application for a jury trial in a similar knockdown situation on a assault charge in Queens criminal court was rejected in People v. R.A., __ Misc.3d __ (Criminal Court Queens County 2019) on the holding that C.P.L. 340.40 applied in this case where the defendant did not face immigration consequences and that any remedy for him was in the Legislature. The case is discussed in B. Kamins, “The New ‘Suazo’ Hearing in Criminal Cases, “ N.Y.L.J. 2/4/19 @ p. 3.

73 Courtroom Closure

People v. Charles E. Sutton, __ A.D.3d __, 2018 NY Slip Op 08698 (2nd Dept. 12/19/18).

The trial court conducted a Hinton hearing on the People’s application to close the courtroom during the testimony of an undercover police officer in the defendant’s weapons and narcotics possession trial, during which time the general public was excluded. Prior to conducting the hearing, the court determined that two individuals were present in the courtroom were the defendant’s relatives and directed them to leave the courtroom during the hearing. At the end of the hearing, the court concluded that the People had established that the safety of the undercover detective required that the courtroom be closed to the general public during the detective’s testimony. When the court inquired whether counsel wanted to be heard with respect to its determination, counsel for the defendant merely reiterated that he would rely on his prior legal arguments and at no time identified the excluded individuals or assert that they should remain in the courtroom during the detective’s testimony because of a familial connection to the defendant under People v. Nazario, 4 N.Y.3d 70, 74 (2005). The appellate division held the defendant’s claim regarding the absence of the family members unpreserved for appellate review on this record.

Fitness to Proceed

People v. Rovell Washington, __ A.D.3d __, 2019 NY Slip Op 2610 (1st Dept. 4/4/19).

The trial court did not err when it determined that the defendant’s trial would commence notwithstanding that a different judge had ordered a sixth C.P.L. art. 730 examination, which had not yet been conducted because the defendant refused to be examined. The trial court also acted within its discretion to decline to repeatedly issue force orders to compel the defendant’s submission by the police during a warrantless search of the defendant’s bag, which was on the floor next t to the competency examination order. As the appellate division noted, a trial court is not prohibited from considering changed or extraordinary circumstances in denying a previously granted application, particularly given the defendant’s profound lack of cooperation and a recent examination finding him competent. In affirming the defendant rape and weapons possession conviction, the court also held that while the trial court should have suppressed a 12 inch knife recovered o him when he was already handcuffed because there was an insufficient reasonable belief he could have gained access to it or any demonstration of exigency, any error was harmless.

74 Access to Juror Information

People v. Kaitlyn Conley, 165 A.D.3d 1602 (4th Dept. 10/15/18), app. dismissed, 32 N.Y.3d 1195 (2019).

The Court of Appeals granted leave to appeal in a case in which the 4th Department sua sponte dismissed a civil appeal from an Oneida County Court order that denied a non-party newspaper reporter’s request fir juror identifying information, including voir dire questionnaires. The issues presented involved whether a non-party may intervene or be joined in a criminal case and whether there is a First Amendment right of access to judicial proceedings.

Jury Selection

General

People v. David Fuller, __ A.D.3d __, 2018 NY Slip Op -7143 (2nd Dept. 10/24/18).

The evidence at trial, established that the defendant was involved in a vehicular collision and after he left the scene, pursing officers attempted to pull him over. During this event, the defendant shot and killed an approaching police officer, then returned to his vehicle and continued to drive until he pulled up beside a sedan. The defendant then shot and killed its operator, pulled that person’s body out of the car and then sped away in that vehicle. The court affirmed the defendant’s first degree murder, robbery and weapons possession conviction and in so doing, rejected claims that the trial court erred in sua sponte dismissing some prospective jurors during the pre-screening phase of jury selection because the record was not adequate, where the defendant never requested that a more complete record of the pre-screening proceeding be made, nor did he object to the process or to the dismissal of any prospective juror in the process. The appellate division also affirmed over claims that reversal was warranted due to the allegedly late disclosure of certain DNA reports, where the results were not generated until after jury selection had been completed, where the reports were similar to other forensic and DNA evidence previously provided, and where the trial court permitted the defense time to examine the new evidence thus dissipating any prejudice. As such the trial judge did not improvidently exercise its “broad discretion” in declining to reopen the voir dire or preclude the use of this evidence at trial.

75 Anonymous Juries

People v. Alex Flores, 32 N.Y.3d 1087 (12/13/18) [7/0; Memorandum], N.Y.L.J. 12/14/18 @ p. 25.

The Court affirmed an appellate division decision [153 A.D.3d 182 (2nd Dept. 2017)] that held that the trial judge committed reversible error by empaneling an anonymous jury. In so ruling, the court noted in dictum that “[a]ssuming that trial courts may, under certain circumstances, anonymize jurors, here County Court acted without any basis for the extraordinary procedure,” where the trial court “expressly based its decision to empanel an anonymous jury on anecdotal accounts from jurors in unrelated cases and then exacerbated the error by taking “no steps to lessen the potential prejudice to defendants,” by providing a limiting instruction. [see 153 A.D.3d at 191].

Right to be Present

People v. Edmund Pinnacle, 165 A.D.3d 521, 2018 NY Slip Op 06984 (1st Dept. 10/18/18).

The defendant was not entitled to be present, or to have his counsel present at a proceeding where the People sought a material witness order, where the proceeding was held only to determine what steps should be taken to secure the witness’s continued appearance and had “nothing to do with the content of the witness’s testimony or any other legal or factual issue that might involve the opposing party in the underlying criminal case,” quoting, People v. Mauro, 49 A.D.3d 268, 269 (1st Dept. 2008). In so ruling, the appellate division also noted that defense counsel received a transcript of the material witness proceeding, was able to use it in cross- examination of the witness and never objected, claims that the ability to cross-examine was somehow compromised by counsel’s inability to observed the witness’s demeanor at the ex parte proceeding were rejected. Leave to appeal to the Court of Appeals was denied on 1/29/19.

Challenges For Cause

People v. Raul Alvarez, __ A.D.3d __, 2019 NY Slip Op 05555 (2nd Dept. 7/10/19).

76 The defendant’s Brooklyn burglary and related-crime conviction was reversed because the trial court failed to obtain unequivocal assurances from three prospective jurors that they could set aside any bias and render an impartial verdict based on the evidence and thereafter erred in denying the defendant’s cause challenges of these jurors and thereafter, the defendant exhausted all of his peremptory challenges.

People v. Jose Martinez, 166 A.D.3d 993, 2019 NY Slip Op 0034 (1st Dept. 1/3/19).

The trial court providently exercised its discretion in denying a challenge for cause in the defendant’s Bronx trial of a juror who disclosed that he was married to a ”supervisor” in the Bronx District Attorney’s Office “complaint office,” and where the juror repeatedly provided assurances that he could be impartial despite his wife’s employment. In affirming the defendant’s firearms sale and related crime conviction, the appellate division noted that the prosecutor stated that he did not know who the juror’s wife was and it was never asserted that the wife had any contact with the defendants’ case, and thus, the defendant failed to meet his burden of demonstrating an implied bias since the relationship between the panelist and the prosecution was “too tenuous.”

People v. Octavio Rivera, 166 A.D.3d 993, 2018 NY Slip Op 08750 (1st Dept. 12/20/18).

On the People’s concession the defendant’s first degree assault conviction was reversed due to the trial court’s error in denying a challenge for cause to a prospective juror that her belief in “hearing both sides of the story,” would make it difficult for her to reach a verdict “without hearing from the defendant,” and who was repeatedly unable to give an unequivocal assurance that she would follow the law as charged by the court.

People v. Robert Ellis, __ A.D.3d __, 2018 NY Slip Op 08143 (2nd Dept. 11/28/18).

A majority of the court held 3-1 that the trial court properly denied the defendant’s for-cause challenge of a prospective juror who was a retired school security officer for the New York City Police Department [NYPD] in a murder and related crimes trial where the prospective juror stated unequivocally that he could be impartial, that he had not heard anything about the case,

77 that he would not discuss the case with his son, (who coincidentally had also been a prospective juror in the case and who had previously been excused on consent as a prospective juror in the case because that son was an NYPD sergeant and knew two of the witnesses in the case) and who reaffirmed in questioning by the court, that he could be fair and impartial. In so ruling, the majority held that the mere fact that the retired school security officer was related to a prospective juror who was excused did not establish implicit bias where there was nothing in the record to show that he had a relationship with the defendant, the victim, a prospective witness or counsel to support any implicit bias claim. In affirming, the majority and dissenter (Barros, J.), differed on whether the trial court erred in declining to appoint an 18B attorney who had represented the defendant in an unrelated criminal case that had concluded two years prior, but agreed that the issue had to be properly raised by a C.P.L. 440.10 application since the facts supporting the defendant’s claim were outside the record. Justice Barris granted leave to appeal to the Court of Appeals on June 11, 2019, and the case is scheduled for summary disposition.

People v. Jerome Brith, __ A.D.3d __, 2018 NY Slip Op 07250 (1st Dept. 10/30/18).

The trial court improvidently exercised its discretion in denying the defendant’s challenge for cause in his narcotics trial to a prospective juro who repeatedly exercised a pre-disposition to credit police testimony and a belief that innocent defendant’s would testify on their own behalf, since the totality of his responses established that he would be unable to put aside his inclinations and be fair and impartial and where the panelist never gave an unequivocal assurance that he would put aside his own beliefs and concerns and render an impartial verdict. As such, the defendant’s conviction was reversed and a new trial ordered.

Peremptory Challenges

People v. Shamar Viera, __ A.D.3d __, 2018 NY Slip Op 06043 (2nd Dept. 9/12/18).

Under CPL 270.15, the decision to entertain a belated peremptory challenge is left to the discretion of the trial court, but where there was “no discernible interference or undue delay caused by the defense’s momentary oversight in asserting a peremptory challenge in a multiple defendant murder trial, the refusal of the trial court to allow the challenge was reversible. See People v. Pedro Parrales,105 A.D.3d 871 (2nd Dept. 2013) for a similar ruling.

Batson

78 People v. Jermaine Dunham, __ A.D.3d __, 2019 NY Slip Op 03886 (1st Dept. 5/16/19).

The trial court properly denied the defendant’s Batson challenge in his Manhattan weapons possession trial where the prosecutor provided non-pretextual reasons for the peremptory challenge in question by explaining that the panelist’s demeanor displayed hesitation, suggesting an attempt to evade questions and where the trial judge expressly understood the DA’s explanation to be demeanor-based and moreover stated that it had made similar observations of the prospective juror’s demeanor.

People v. Raymond Teran, __ A.D.3d __, 2019 NY Slip Op 03532 (1st Dept. 5/7/19).

The trial court properly denied the defendant’s Batson challenge in connection with the prosecution’s peremptory challenge of three African-American prospective jurors in the defendant’s narcotics sale trial where the record supported the court’s finding that the non- discriminatory reasons provided by the prosecutor for the challenges were not pretextual. Thus, one panelist had previously served on a hung jury which has been previously found to be a valid race neutral reason for a peremptory challenge [People v. Mitchell, 216 A.D.2d 156 (1st Dept. 1995)], with an additional explanation that the juror was a coordinator in a soup kitchen with possible associations with drug dealers, which raised a concern that she might harbor a sympathy to a person charged with a drug offense [see People v. Wint, 237 A.D.2d 195, 197 (1st Dept. 1997) cited by the court: “somewhat analogously we previously have found the absence of racial pretext for peremptory challenges premised on a panelist’s prospective juror’s social service orientation”]. A second juror expressed reservations about accessorial liability indicating reluctance to convict someone guilty unless he had directly sold drugs, a race neutral reason, and moreover was a case manager for a community based organization, had worked with HIV- positive drug users, which also supported the prosecutor’s concern about sympathy for the defendant. See People v. James, 282 A.D.2d 264 (1st Dept. 2001) and People v. Wint, 237 A.D.2d at 197. The third prospective juror “seemed unaware of the neighborhood where her mother lived, explained her disinterest as “I don’t ask a lot of questions,” and moreover “generally seemed disinterested in the entire process,” which, along with demeanor, have been considered as race-neutral reasons. People v. Artis, 262 A.D.2d 215 (1st Dept. 1999); see generally People v. Jeanty, 94 N.Y.2d 507 (2000). Justice Renwick, concurred on the conclusion that the defendant failed to meet the “very tough burden of demonstrating race-neutral reasons.” Nonetheless she also noted that the record “demonstrates, at best, that the challenges against two of the three African-American Jurors, were the subject of the prosecutor’s questionable assumption that social service workers,,, are unduly sympathetic to criminal defendants,” and that these assumptions were based on “absurd and implausible stereotypes.”

79 People v. Willie Johnson, __ A.D.3d __, 2019 NY Slip Op 02897 (2nd Dept. 4/27/19).

Although not properly preserved on the defendant’s appeal from his Suffolk manslaughter conviction the appellate division nonetheless observed in the alternative that the defendant’s claim that the prosecution’s exercised of peremptory challenges against “young adults” was without merit since “young adults” are not a cognizable group with regard to discrimination in jury selection.

People v. Shaequawn Watson, __ A.D.3d __, 2019 NY Slip Op 00217 (1st Dept. 1/10/19).

A majority of the appellate division held 3-2 that notwithstanding a prior order of the court to conduct a reconstructed Batson hearing on remand, and specifically to identify which of several prospective jurors were speaking [141 A.D.3d 23 (1st Dept. 2016)] in a case in which the original trial transcript did not, the reconstruction judge’s failure to comply with this direction required reversal of the defendant’s New York County second degree assault and resisting arrest case. Thus, where the original defense Batson challenge was based on the People’s alleged striking of all African males and the district attorney claimed on Step Two that the reason for these challenges was that the challenged jurors had purportedly had negative experiences with the police, but the record was unclear as to which jurors were speaking in connection with evaluating similarly situated white jurors, reversal was ordered where the defendant had already served his time. Justice Freedman dissented on the conclusion that as he had urged on the original appeal, remand for a reconstruction hearing was not warranted. Justice Richter also dissented, on the determination that a “reopened” Batson hearing should be conducted on remand.

People v. Diamonte Alexander, 168 A.D.3d 755, 2019 NY Slip Op 00135 (2nd Dept. 1/9/19).

The defendant’s Queens manslaughter conviction was reversed on the appellate division’s conclusion that the trial court should not have granted the prosecutor’s peremptory challenge to a prospective African-American juror because the court failed to determine whether the prosecutor provided sufficient race-neutral reasons for challenging a potential juror. Thus, where, during jury selection the court entertained a Batson challenge from the defense and after finding a prima facie case under Step 1, the prosecutor asserted on a Batson Step 2, [production] that the juror was challenged because he was too young and inexperienced to serve in a murder case, after allowing for further questioning of the juror determined himself that the potential juror seemed to have difficulty understanding questions and appeared to have a “glazed-eye look” and that his

80 ability to communicate was “somewhat impaired,” the court permitted the prosecutor to maintain her peremptory challenge on a finding of no discriminatory conduct, but never provided a ruling on a Step 3 determination [persuasion] the defendant’s initial Batson challenge relating to the juror’s age and experience, the error was reversible. In so ruling, the appellate division quoting United States v. Taylor, 636 F.3d 901, 905 (7th Cir. 2011) with approval: “when ruling on a Batson challenge, the trial court should consider only the reasons initially given to support the challenged strike, not additional reasons offered after the fact.”

People v. Davon Nuckols, __ A.D.3d __, 2018 NY Slip Op 08541 (1st Dept. 12/13/18).

The trial court properly granted the People’s reverse-Batson challenge regrading the defense counsel’s exercise of a peremptory challenge of a prospective juror in a Bronx rape trial where defense counsel explanation for the challenge that the juror’s pregnancy could have made her “emotional,” counsel never questioned the juror about her pregnancy or established whether in fact, the juror was pregnant.. See People v. Young, 35 A.D.3d 324, 325 (1st Dept. 2006), cited by the court. In affirming, the appellate division also noted that the trial judge properly declined to replace a deliberating juror with an alternate due to misconduct where even assuming that the juror gestured to the other jurors ata critical point during a readback of testimony and mouthed the word “rape,” this was not “misconduct of a substantial nature” as required in C.P.L. 270.35 to mandate a discharge and replacement.

People v. Edward Malloy, __ N.Y.3d __, 2019 NY Slip Op 05061 (6/25/19) [7/0; Memorandum].

The Court of Appeals affirmed the defendant’s Albany murder and related crimes conviction over claims that the trial court erroneously denied his Batson challenge of a female, African- American prospective juror who, according to the prosecutor, was peremptorily challenged because of her “attitude” in response to his questions on voir dire, that his “interaction with her was not favorable at all,” that based on her tone of voice, she was “dismissive” and “rude,” and the “abnormal” response, in light of these observations that she would make a good juror. In so ruling, the Court held that according great deference to the trial judge’s resolution of the Batson claim, the Court could not say that the proffered reason was “pretext for race-based discrimination,” quoting Hernandez v. New York, 500 U.S. 352, 364 (1991). Thus a divided Third Department [166 A.D.3d 1302 (3rd Dept. 2018)] had held that the the prosecutor’s Step 2 reasons were gender-neutral and that on a Step 3 review where the Step 1 prima facie showing was “very weak” but rendered moot by the DA’s explanation, this considered with all the other

81 proof in the record [see People v. Hecker, 15 N.Y.3d 625, 660 (2010)], that the prosecutor did not challenge the two other African-American jurors in the prior round, the trial judge’s determination to deny the challenge was entitled to great deference.

Curtis Flowers v. Mississippi, __ U.S. __ (6/21/19) [7/2; Kavanaugh, J.].

A majority of the Supreme Court per Kavanaugh, J. granted a writ of habeas corpus in a quadruple murder case on a Batson claim in which the defendant was tried six times and in his first trials the prosecutor was twice found to have violated the constitutional ban on racial discrimination in jury selection by removing all African-American jurors in those trials. In the case on review, the prosecutor [the same one in all trials] permitted the first African-American juror to be seated but then struck the remaining five jurors. In reversing the Mississippi Supreme Court, the majority held that the relevant facts and circumstances taken together established that at the defendant’s sixth trial, the conclusion of the lower court’s that the State’s peremptory strike of a prospective juror was not motivated in substantial part by discriminatory intent was no born out by the record, which included, among other things, the fact that the State’s use of peremptory strikes in defendant’s first four trials “strongly supports the conclusion that peremptory strikes in the sixth trial was motivated in “substantial part” by discriminatory intent by the “State’s relentless, determined effort to rid the jury of black individuals,” which was supported by “disparate questioning” of African-American jurors [145 questions were asked of 5 black jurors but only 12 questions were asked of 11 white seated jurors]. The case as it was presented on certiorari and after oral argument is discussed in D. W. Ogden, “Public Safety Depends on Juries Chosen Without Racial Discrimination,” N.Y.L.J. 3/18/19 @ p. 7 and C. Dunn, “Death Penalty Drama and the Supreme Court,” N.Y.L.J. 4/4/19 @ p. 3.

Witness Lists

People v. Avery Kyser, 158 A.D.3d 544, 2018 NY Slip Op 01160 (1st Dept. 2/20/18).

The People omitted the complainant in a first degree burglary, second degree assault and weapons prosecution from their witness list because they were unable to locate him in the two years between the incident and the trial. However, after the jury was selected, and just before opening statements, they advised the court that they had located the complainant, and the court permitted him to testify the next day over defense counsel’s objection and request to either preclude the testimony or grant a mistrial. The defendant’s conviction was reversed on the holding that defense counsel relied to her detriment on her expectation that the People would not call this witness when she used her voir dire time to question jurors about other issues, including

82 their ability to evaluate videotape evidence, believing that this would be the main evidence in the case, and thus, never questioned prospective jurors about their ability to impartially evaluate a victim’s testimony and indeed represented to the jury that no complainant would testify, thus undermining her own credibility. In reversing, the court noted that because the court denied the application to preclude, the jury as selected was “geared entirely to a trial without the complainants’ testimony and thus, should have granted the alternative request, made prior to opening arguments, to select another jury.”

Arraignment on Special Information

People v. Rickey Alston, 169 A.D.3d 1, 2019 NY Slip Op 00410 (1st Dept. 1/22/19).

A majority of the court held 4-1 that although the statutory purpose of C.P.L. 200.60 was not satisfied when the trial court, over objection, arraigned the defendant on a special information prior to jury selection in contravention of the plain wording of the statute in his Manhattan weapons possession and related-crime trial, the first department affirmed on a holding that the defendant failed to show any prejudice arising from this violation. Justice Renwick dissented on the conclusion that the error was indeed “inherently harmful” and that therefore a new trial was required.

Late Notice of Intent to Introduce Psychiatric Evidence

People v. Len Morris, __ A.D.3d __, 2019 NY Slip Op 05160 (2nd Dept. 6/26/19).

The trial court failed to exercise “any discretion” over whether to permit the defendant in a Dutchess County second degree burglary case to file a late notice of intent to introduce psychiatric evidence where the record demonstrated that the defendant previously had suffered auditory hallucinations witha resultant hospitalization which”had high probative value to corroborate his claim that he entered the complainant’s home with intent to aid a woman who was yelling, rather than to damage the house.” As such the defendant’s conviction was reversed and the matter remitted to the trial court. In so ruling, the appellate division noted that in exercising that discretion in such matters, courts should weigh the defendant’s constitutional right to present witnesses in his own defense against the prejudice to the People arising from the late notice as required in People v. Berk, 88 N.Y.2d 257, 266 (1996).

83 Excessive Questioning of Witnesses By Court

People v. Darnell Ramsey, __ A.D.3d __, 2019 NY Slip Op 05571 (2nd Dept. 7/10/19), N.Y.L.J. 7/12/19 @ p. 1.

The appellate division reversed a Queens defendant’s first degree robbery conviction in the interest of justice due the extensive questioning of witnesses by the trial in which he “usurped the roles of the attorneys, elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstered the witnesses’ credibility, interrupted cross- examination, and generally created the impression that in was an advocate on behalf of the People.” The court took this action, notwithstanding that defense counsel did not object and ordered a new trial before a different Justice. See People v. Sookdeo, 164 A.D.3d 1268, 1269- 1270 (2nd Dept. 2018), discussed below, cited by the second department in this ruling.

People v. Lutchman Sookdeo, __ A.D.3d __, 2018 NY Slip Op 06040 (2nd Dept. 9/12/18).

The court reversed a Queens defendant’s gang assault and related crimes conviction due to the trial court’s excessive questioning of multiple witnesses during which “the step-by-step details of how the defendant was identified by witnesses as a suspect” and thus, “generally created the impression that it was an advocate for the People. The court directed a new trial before a different judge in the interest of justice notwithstanding that defense counsel did not object in most instances. The case is discussed in C. Hamilton, “A Series of Rare Appellate Reversal Orders, All From One Queens Judge,” N.Y.L.J. 9/17/18 @ p. 1.

Evidence of Gang Membership

People v. Terrance Hyland, 168 A.D.3d 196, 2019 NY Slip Op 00619 (2nd Dept. 1/30/19).

Evidence regarding the defendant’s gang membership was properly admitted by the trial court during the defendant’s acting in concert robbery prosecution in order to explain the relationship between the parties in a case in which the victim testified that he was a member of a gang and that he was targeted because the defendant and his co-defendant believed he had “snitched” on fellow gang members. In affirming, the appellate division also held that the determination to admit certain statements of the non-testifying co-defendant was proper where it was offered not for the truth but to explain the declarant’s state of mind, and also to permit the jury to infer accessorial liability.

84 Cross-Examination of Witnesses

People v. Steve Johnson, __ A.D.3d __, 2019 N.Y. App. Div. Lexis 6457, 2019 NY Slip Op 06444 (1st Dept. 9/3/19).

The trial court properly permitted cross-examination of a defense expert witness about the defendant’s ability to cooperate with his attorneys during his attempted murder as a hate crime and related crimes trial where the questioning was directly relevant to refute a claim about the defendant’s alleged delusions that was at the core of his insanity defense and where the defendant did not demonstrate that (as he argued), the only way he could rebut the cross-examination was by completely waiving the attorney-client privilege and where, in any event, the alleged disadvantage did not entitle him to “disable the People from relying on that part of the truth,” quoting, People v. Yazum, 13 N.Y.2d 302, 305 (1963). In affirming the first department additionally held that the People’s expert was properly permitted to tedstify that persons asserting insanity defenses may exaggerate their mental illnesses to avoid prison where the court’s instructions, including its charge under C.P.L. 300.10(3) were sufficient to prevent the testimony at issue from misleading the jury about the consequences of an insanity acquittal.

People v. Sylvin C. Moulton, __ A.D.3d __, 2018 NY Slip Op 05203 (2nd Dept. 7/11/18).

The appellate division reversed the defendant’s conviction for first degree rape and endangering the welfare of a child in its discretion and in the interest of justice based on the prosecutor’s having injected her own credibility into the trial while cross-examining the complainant’s grandmother, who ws the sole witness for the defense other than the defendant about out-of-court statements the grandmother made to the prosecutor concerning the complainant’s outcry. As the court noted, “[g]iven the importance of the grandmother’s testimony to the defense, this conduct deprived the defendant of his right to a fair trial.”

People v. Kiddane Murdock, 163 A.D.3d 590, 2018 N.Y. Slip Op 05061 (2nd Dept. 7/5/18).

The trial court properly exercised its discretion in limiting defense counsel’s cross-examination of a detective in the defendant’s murder prosecution regarding a witness’s prior bad acts since counsel failed to establish a good faith basis in fact for the inquiry.

People v. Anthony Smalls, __ A.D.3d __, 2018 NY Slip Op 04646 (1st Dept. 6/21/18).

85 The trial court correctly received a recorded phone call made by the defendant while he was incarcerated which contained statements that qualified as admissions because, notwithstanding any ambiguity, the could plainly be understood as inconsistent with the defendant’s position in his weapons possession and false personation trial and thus this evidence was “highly probative.” In so ruling, the court noted that while the trial court erroneously precluded the defense from cross-examining a police sergeant about the facts underlying a federal false arrest complaint under People v. Smith, 27 N.Y.3d 652, 662 (2016), the error was “plainly harmless,” to the extent that any claims regarding the effect of this ruling vis a vis the sergeant who provided “peripheral” evidence or another officer was “speculative.”

People v. Miguel Caro, __ A.D.3d __, 2018 NY Slip Op 04637 (1st Dept. 6/21/18).

The defendant’s conviction for second degree criminal sexual conduct against a child and endangering the welfare of a child was affirmed over claims that the trial court improperly precluded inquiry into the victim’s allegation of sexual abuse by her mother’s previous boyfriend on the holding that the earlier single incident that occurred years before the events at issue when the complainant was six years old and in which no police report was made had no indication to suggest that it was falsely made. Additionally, the court also held that the trial court properly permitted the victim to testify that she had written in her diary what the defendant was “doing to her,” and that he had “touched” her where this proof came in the context of the victim’s sister’s report of the crime to the police after reading the diary and as such was non-testimonial and relevant for the non-hearsay purpose of completing the narrative.

People v. Robert Gray, __ A.D.3d __, 2018 NY Slip Op 02485 (2nd Dept. 4/11/18).

Since a trial court’s “discretion in making evidentiary rulings is circumscribed by the rules of evidence and the defendant’s right to present a defense,” the trial court was held to have properly exercised that discretion in precluding testimony of a proffered defense witness that the complainant in a menacing trial expressed suicidal thoughts one year before the incident where it was “too speculative or remote in time to suggest that the complainant was suicidal on the relevant date or otherwise responsible for the incident.”

People v. Ronald Wright, __ A.D.3d __, 2018 NY Slip Op 02347 (2nd Dept. 4/4/18).

While the defendant failed to preserve his claim that the trial curtailed his right to cross-examine the complainant in a robbery case, and thus violated his Sixth Amendment right of cross-

86 examination, in any event, where the trial judge afforded the defendant the opportunity to contradict answers given by the complainant to show bias, hostility or interest, any limitation of the examination was properly the result of a line of inquiry without foundation or on matters that would have caused the jury to speculate about irrelevant matters and matters not in evidence.

Calling Witness to Assert Fifth Amendment Privilege

People v. Edward Malloy, 166 A.D.3d 1302, 2018 NY Slip Op 07977 (3rd Dept. 2018).

The court affirmed the defendant’s murder conviction over claims that the prosecutor was improperly permitted to call a witness to the stand solely for the purpose of invoking his privlege against self-incrimination in the presence of the jury in a case in which the third department held that the trial judge properly invoked its discretion to permit the witness to do so with regard to any questions regarding the incident in question and that in any event, the jury may well have inferred that the witness rather than the defendant was the killer. Additionally, the court held that the People did not abuse their discretion in refusing to confer immunity on this witness. Additional issues regarding the grand jury presentment and a Batson challenge are discussed above. Leave to appeal to the Court of Appeals was granted by Justice Clark who dissented on the Batson issue on 1/10/19. See 32 N.Y.3d 1180.

Right to Present a Defense

People v. Brian Jordan, 168 A.D.3d 458, 2019 NY Slip Op 00187 (1st Dept. 1/10/19).

The trial court properly precluded a defense witness from testifying that an unnamed police officer stole cash money found during a search of one of two apartments in issue other than from the room in which contraband was found where the officer who testified about the search of the apartment denied taking any money and where there was no claim that the testifying officer was the thief. In so ruling, the court rejected claims that the defendant’s right to present a defense was impaired where the testimony, if admitted would have invited conjecture on collateral matters. Further, the court also upheld the discharge of a sworn juror who overheard a defense witness speaking on a cell phone about this purported evidence that the court had excluded without inquiry of the juror where other than a vague reference to one, none was requested by the defense, there was no specific request for this action.

87 Summations

People v. Steven Powell, __ A.D.3d __, 2018 NY Slip Op 06768 (2nd Dept. 10/10/18).

The defendant’s Brooklyn murder conviction was reversed as a result of statements advanced by the prosecutor on summation in which she stated that “the defendant’s DNA was on the gun,” “[t]he DNA has spoken,” and that “[t]he defendant’s DNA, by being on that safety without even taking into account [the witness’s] testimony, makes him guilty,” where these remarks overstated and misrepresented the statistical comparison testified to by the People’s expert who performed the DNA analysis of the swab taken from the safety of the murder weapon (the expert testified that a swab taken from the trigger and trigger guard contained a mixture of DNA from at least three people; a swab taken from the safety of the murder weapon contained a mixture of DNA from at least two people, and the DNA mixture found in that sample was approximately 1.11 billion times more probable if the sample originated from the defendant, the witness’s girlfriend and one unknown, unrelated person, than if it originated from the witness’s girlfriend and two unknown unrelated persons and that the DNA mixture found in the sample taken from the safety was approximately 616 million times more probable if the sample originated from the defendant and two unknown, unrelated persons than if it originated from three unknown, unrelated persons). An additional ground for reversal was ineffective assistance of counsel due to the failure by defense counsel to object to these comments relating to DNA, which as has been recently noted by the Court of Appeals in People v. Wright, 25 N.Y.3d 769, 782 (2015), is so persuasive to a jury, that when misused deprived the defendant of a fair trial.

People v. Anthony Bragg, 161 A.D.3d 998 (2nd Dept. 5/16/18).

The defendant’s Brooklyn burglary conviction was affirmed over claims that the trial court improperly precluded defense counsel from arguing in her summation that the testimony of a detective that the defendant consented to provide a buccal swab of his DNA for testing demonstrated the defendant’s innocence. In so ruling the second department held that the claim that this determination deprived him of his right to make a defense was unpreserved and in any event, without merit.

Instructions

88 People v. Dwayne Gentles, __ A.D.3d __, 2019 NY Slip Op 02623 (1st Dept. 4/4/19), N.Y.L.J. 4/8/19 @ p. 20.

As the People “essentially concede[d],” the trial court’s jury charge in a case of animal cruelty based on a theory that the defendant personally mistreated his dog, was constructively amended when the lower court read almost the entire statute of Ag. & Mkts. L. 353 to the jury which would allow a conviction if the defendant “merely permitted” another to mistreat his dog. Under the circumstances, the defendant’s conviction was reversed, even without any timely objection and a new trial ordered, even though the defendant had already completed his sentence.

People v. Oscar Jiggetts, __ A.D.3d __, 2019 NY Slip Op 00348 (2nd Dept. 1/17/19, N.Y.L.J. 1/24/19 @ p. 1.

While the trial court erred in denying the defendant’s request to instruct the jury on identifications in the defendant’s Manhattan robbery trial, [see People v. Boone, 30 N.Y.3d 521, 535 (2017)], the error was held harmless be”given the specific facts of the case where the key identifying feature was a red cloth that the victim stated the robber had been holding and where the defendant appeared on a videotape holding such a cloth as he tried to use the victim’s stolen credit card shortly after the robbery. This proof, coupled with the recovery of the victim’s Social Security card from the defendant’s apartment rendered the People’s proof overwhelming, where, especially the defendant provided an implausible explanation for his recent, exclusive possession of the fruits of the crime. See also, People v. Bernard Patterson, __ A.D.3d __, 29019 NY Slip Op 02154 (2nd Dept. 3/21/19) for a similar ruling on harmless error in this context.

Justification

People v. Darryl Brown, __ N.Y.3d __, 2019 NY Slip Op 03529 (5/7/19) [7/0; Wlison, J.], N.Y.L.J. 5/8/19 @ p. 25.

The trial court properly denied the defendant’s request for a justification charge in a murder case arising out of an altercation in an apartment hallway that resulted in the shooting death of the victim, Vonde Cabbagestalk, on the holding that the there was no reasonable view of the evidence to warrant the charge, where on the facts most favorable to the defense, the defendant was the initial aggressor and the victim was unarmed and while he was attempting to “swipe” at

89 the weapon, was not using deadly physical force under P.L. 35.15(1)(b). Thus, an appellate division order that reversed the defendant’s conviction and granted a new trial [160 A.D.3d 39], was in turn, reversed and the conviction reinstated.

People v. Fidel Vega, __ N.Y.3d __, 2019 NY Slip Op 03530 (5/7/19) [7/0; Memorandum], N.Y.L.J. 5/8/19 @ p. 25.

The Court held that while it was possible for a trial court provide a justification charge involving use of non-deadly physical force in a case with a charge involving the use of a dangerous instrument, the court in this case properly declined to do so on the record presented. As the Court noted, “although it would be a rare case,” where, as here, under the “particular circumstance of a case that involved a second degree assault by use of a belt with a metal buckle with a lesser included charge of third degree assault, there is no “per se rule” involving such an instruction which always depends on the facts considered most favorably to the defense. As such, the trial court properly instructed the jury on jsuticiation consistent with the defendant’s purported defense of a third person with respect to the lesser charge of third degree assault and also that if it found beyond a reasonable doubt that the defendant used a dangerous instrument, they should apply the principles of the use of deadly force. See also People v. Hassan Rkein, __ N.Y.3d __, 2019 NY Slip Op 03528 (2nd Dept. 5/7/19), N.Y.L.J. 5/8/19 @ p. 25, decided the same day involving the striking of a complainant with a pint glass with the same holding.

People v. Romeo Marishaw, __ A.D.3d __, 2019 NY Slip Op 05320 (1st Dept. 7/2/19).

The trial court properly declined to charge justifiable use of ordinary non-deadly physical force under P.L. 35.15(1). As the Court of Appeals recently observed in People v. Vega, __ N.Y.3d __, 2019 NY Slip Op 03530 (2019) [discussed above], while there is no per se rule regarding which justification instructions are appropriate based solely on the fact that the defendant has been charged with second degree assault with a dangerous instrument, here, as in Vega, the defendant was not entitled to an ordinary force instruction, because udner the circumstances in this case involving the victim’s suffering a puncture wound to his left cheek following an argument with hteh defendant in which the defendant threatened to stab the complainant, there was no reasonable view of the evidence, wjhich included surveillance video under which the jury could have concluded that the defendant did not use a dangerous instrument. Indeed, as the court further obwerved, on the facts presented, the only possible justification charge was for deadly, not ordinary force under P.L. 35.15(2) which was not requested.

90 People v. Waheed Akbar, 169 A.D.3d 708, 2019 NY Slip Op 00894 (2nd Dept. 2/6/19).

The appellate division reversed the defendant’s first degree assault and related-crime conviction as a lesser included offense arising out of a Queens stabbing as a result of the trial courts’ failure to adequately instruct the jury regarding the defendant’s justification defense and in particular, in failing to instruct, pursuant to People v. Velez, 131 A.D.3d 129 (1st Dept. 2015) and related cases that if they found the defendant not guilty of the top charge of second degree murder based upon the justification defense , they were not to consider any other lesser counts. In so ruling, the court noted that on the record presented, it was impossible to discern whether the acquittal of the top count was based on the jurors’ finding of justification so as to mandate acquittal on the remaining five counts. See also People v. Tinkita Smith, __ A.D.3d __, 2019 NY Slip Op 06004 (2nd Dept. 7/31/19) and People v. Angel Rosario, __ A.D.3d __, 2019 NY Slip Op 01432 (2nd Dept. 2/27/19) for later cases with the same holding. The court also noted that since a new trial was ordered, the trial court should have submitted requested lesser charges of reckless and criminally negligent third degree assault where there was a reasonable view of the evidence that the defendant either was aware of an consciously disregarded a substantial and unjustified risk that physical injury would occur or that he failed to perceive a substantial and unjustifiable risk of physical injury caused by his use of a deadly weapon.

People v. Alfred Rivera/David Rodriguez, Tobias Parker/Jose Parra, Harmon Frierson & Dwayne Maynard, __ A.D.3d __, 2018 NY Slip Op 09024 (1st Dept. 12/17/18).

The trial court properly declined to charge justification pursuant to P.L. 35.10(2) and 35.30(1) regarding defendants Rodriguez, Parker, Parra and Rivera, but properly charged justification under P.L. 35.15 in a joint jury/bench Bronx gang assault and official misconduct trial involving an altercation between a prison inmate-victim and corrections officers-defendants in a search pen in a case that the appellate division determined to have been a “straightforward credibility contest,” in which the corrections officers claimed that they used force to defend themselves, but the victim testified that he was merely complying with a search when the officers suddenly initiated an attack against him without provocation. In affirming, the appellate division also held that the trial court properly denied a severance motion filed by two defendants who proceeded non-jury where the People’s case against all defendants did not pose any “irreconcilable conflict[s]” and where the court a a separate fact-finder regarding these defendants was presumed capable of avoiding prejudice. The first department also rejected claims that the defendants were entitled to a Frye hearing regarding a metal detector, through which the victim passed shortly before the incident and further held that a People’s expert was properly permitted to testify, based on experience regarding thousands of tests of the ssame model that the machine would have a 99.999% chance of detecting a piece of metal in question or a 1 in 100,000 chance of failing to do so.

91 People v. Pedro Fletcher, __ A.D.3d __, 2018 NY Slip Op 07747 (2nd Dept. 11/14/18).

In a case arising out of an altercation netween the defendant, and two others, Dyene Herron and Jowanico Grandu, during wihc the defendant stabbed Grandu in the hand, the lwoer court instructed the jury on justification with respect to first and second degree assualt, both of which related to the defendants’ conduct towards Grandu, but did not instruct the jury on the defense of temporary and lawful possession of a weapon with respect to a second degree weapons charge. The jury found the defendant guilty of second degree assault and second degree weapons possession, but acquitted on the first degree seapons charge. The appellate division reversed tbhe defendant’s conviction on the holding that the verdict sheet provided to the jury following the court’s final isntructions failed to convey that if it foudn the defendant not guilty based on first degree assault based on justification, then it should, “simply render a verdict of acquittla and cease deliberations, without regard to assault in the second degree pursuant to People v. Castro, 131 A.D.3d 771, 773-774 (2nd Dept. 1987). Thus, the court’s instruction, taken together with the verdict sheet, may have led the jurors to conclude that deliberation on each assault count as to Grandu required reconsideration of the justification defense, even though they had already acquitted the defendant of assault in the first degree. An additional ground for reversal was the failure by the trial court to have instructed on the temporary and lawful possession of a weapon in a case in which defendant picked up a knife to repel Grandu, who jumped on his back during the fight in a circumstance in which he may have been entitled under the law to do so.

Deliberations Error

People v. Owen Larman, __ A.D.3d __, 2019 NY Slip Op 06097 (2nd Dept. 8/7/19).

During deliberations in the defendant’s Brooklyn grand larceny trial, an alternate juror briefly and for an undetermined time, participated in the deliberations with 11 sworn members of the juror with the 12th juror was absent from the room. The court then replaced the alternate juror with the 12th sworn juror and sent the jury back to continue to deliberate. The defendant moved for a mistrial and the court reserved decision. The next day, the court questioned each of the 11 sworn jurors individually about their ability to disregard the prior deliberations and start deliberations anew. After each juror assured the court that this could be done the court denied a mistrial application and directed the jurors to resume deliberations. The defendant was convicted thereafter. The appellate division, citing People v. Davis, 161 A.D.3d 1003 (2nd Dept. 5/16/18), with similar facts arising out of Queens, among other cases, reversed and held that the deliberations error was reversible due to a failure to comply with the statutory directives in C.P.L. 270.30 and 270.35. As in Davis, no remedial instructions or inquiry will suffice to cure the error.

92 Discharge of Sworn Jurors

People v. Carlos Velasquez, 168 A.D.3d 768, 2019 NY Slip Op 00148 (2nd Dept. 1/9/19).

Following notification that a sworn jury expressed apprehension regarding the manner that the defendant was looking at her in a Westchester burglary and escape trial, the trial court spoke to the juror in the presence of the attorneys and the defendant and thereafter spoke to each juror individually as well. The judge indicated that the defendant’s physical features and the way in which he tilted his head may have contributed to the expressed concerns but while the defendant had not behaved inappropriately during the trial, the juror was discharged “in an abundance of caution.” The trial court, however declined to grant a mistrial. The appellate division affirmed on the holding that following the inquiry of the remaining jurors, the trial court was satisfied that they could all remain fair and impartial.

Discharge of Sworn Juror During Deliberation Due to Jury Tampering - Defendant’s Implied Consent to Verdict With 11 Jurors

People v. Sargeant, __ Misc.3d __, N.Y.L.J. Lexis 2174 (Sup. Ct. Queens Co. 5/24/19) [#01354-17], N.Y.L.J. 6/24/19 @ p. 1.

The court discharged a sworn juror during deliberations after a hearing based on clear and convincing proof that the defendant personally traveled to the jurors house during a recess based on testimony from the juror who was reluctant to identify the defendant as the person who spoke to him and the testimony of a Brooklyn ADA, who happened to be a close friend of the juror, who was contacted by the juror who was upset and panicked, and along with describing the tampering, identified the person who did this as the defendant. The court thereafter denied the defendant’s application for a mistrial and granted the People’s application to proceed to verdict with 11 remaining jurors based on the defendant’s misconduct, based on People v. Gajahar, 9 N.Y.3d 438 (2007) [defendant can waive right to verdict with 12 jurors] and several federal cases [United States v. Stratton, 779 F.2d 820, 831 (2nd Cir. 1985); United States v. Vartanuian, 476 F.3d 1075 (9th Cir. 2007) and United States v. Edwards, 188 F.3d 320 (4th Cir. 1999), along with People v. Gareaci, 85 N.Y.2d 359 (1995), which concerned witness tampering.

93 Missing Witness Instruction

People v. Samuel J. Smith, 33 N.Y.3d 454, 2019 NY Slip Op 04447 (6/6/19) [7-0; Feinman, J.], N.Y.L.J. 6/7/19 @ pp. 1 & 22.

The Court of Appeals held that the proponent of a missing witness instruction is not required to disprove that the evidence to be offered by the uncalled-witness would be cumulative. Thus, consistent with People v, Gonzalez, 68 N.Y.2d 424, 427 (1986), the three components of a successful request for such an instruction is that “(1) there is an uncalled witness believed to be knowledgeable about a material issue pending in the case; (2) that such witness can be expected to testify favorably to the opposing party, and (3) that such party has failed to call the witness to testify, and as such a requirement set by the fourth department [162 A.D.3d 1686 (4th Dept. 6/29/18); see also each of the other appellate divisions as well] that the proponent carry an “initial burden of demonstrating prima facie that the witness had non-cumulative evidence was error. Thus, where the People asserted without elaboration that an uncalled witness, one James Dees, the then-boyfriend of a shooting victim was present at the commencement of a series of events that led to the shooting of the victim in an ally in Rochester, had only “cumulative” evidence, this was insufficient and that as such the failure to provide charge in an attempted murder and firearms possession case was reversible.

Submission of Lesser Included Offenses

People v. Emmanuel Almonte, __ N.Y.3d __, 2019 NY Slip Op 05185 (6/27/19) [5/1; Memorandum], N.Y.L.J. 6/28/19 @ p. 24.

The trial properly denied the defendant’s request to charge the jury on the lesser included charged of thrid degree assualt as lesser offenses to the charged crimes of attempted first degree assault and second degree assault on a conclusion by a majority of the Court of Appeals that there was a reasonable view of the evidence that he committed the lesser offense but not thre greater when viewed in the light most favorable to the defendant. The Court also held that the trial court’s admission of a call between the victim and a 911 operator was properly admitted as either a spontaneous declaration or excited utterance and that any error in any event was harmless. Judge Rivera dissented on her conclusion that the failure to charge the lesser offense of assualt in the third degree was reversible in a case involving the alleged theft of a cell phone while the defendant beat the victim at gunpoint where on the facts most favorable to the defendant the jury

94 could have disbelieved the victim that he was injured when a co-defendant hit him in the head with a gun and that the 911 call was not properly admitted as an excited utterance where there was an insufficient demonstration that the call was made without “reflexive capacity.”

People v. James R. McIntosh, __ N.Y.3d __, 2019 NY Slip Op 05186 (6/27/19) [7/0; Memorandum], N.Y.L.J. 6/28/19 @ p. 26.

Even assuming the trial court erred in denying the defendant’s request to submit the crimes of second degree manslaughter and criminal negligent homicide to the jury as lesser charges in the defendant’s second degree murder prosecution, the error was harmless where the jury’s verdict of guilty on the indictment’s highest count, murder, foreclosed a challenge to the refusal to charge “remote lesser included offenses,” quoting People v. Boettcher, 69 N.Y.2d 174, 180 (1987).

People v. Don P. Sipp. __ N.Y.3d __ (8/29/19) [7/0; Memorandum].

Viewed in the light most favorable to the defendant, the trial court properly denied the defendant’s request to instruct the jury on the lesser included offense of third degree assault in his second degree assault case where the evidence reflected that the defendant slashed his former girlfriend and neck with a sharp isntrument and repeatedly stomped her on her head with his boot-clad foot and where the vicim’s face was disfigured with scars under one eyebrow, under the other eye, on her lip and across her neck and where expert medical testimony indicated that the victim suffered at least five displaced features around her eye sockets and nose, which were left to heal as displaced.

People v. Wilfredo Flores, __ A.D.3d __, 2018 NY Slip Op 06557 (2nd Dept. 10/3/18).

The appellate division reversed the defendant’s second degree manslaughter conviction on the ground that the trial court should have granted the defense request to submit criminally negligent homicide as a lesser included offense to the indicted charge of first degree manslaughter where the jury could have credited the defendant’s account of the incident and could ahve reasonably concluded that the defendant did not intend to cause seriosu physical injury and that he failed to perceive that his conduct created a substantial and unjustifiable risk that death would occur. Additional grounds for reversal was the trial court’s error in permitting the prosecutor to question the defendant about his post-arrest silence in a case in which the defendant initially responded to certain questions asked by the police but effectively invoked his right to remain silent and offered

95 no information about the facts of the crime and the prosecutions excessive argument on summation in which he “continuously” referred to the defendant as a liar, misstated evidence, denigrated tweh defense, shifted the burden of proof, attempted to arouse the sympathies of the juros and vouched for his witnesses’ credibility.

Written Instructions

People v. Zhakariyya Muhammad, __ A.D.3d __, 2019 N.Y. App. Div. Lexis 2649, 2019 NY Slip Op 02609 (2nd Dept. 4/4/19), N.Y.L.J. 4/8/19 @ p. 18.

At the conclusion of the defendant’s New York County sexual abuse case, the trial court distributed written copies of its final charge to the jury and invited them to “read along” during its reading of its final charge to and to take the written instructions into the jury room. The judge further instructed that the “written copies [were] simply an aid to your absorbing and remembering [the court’s oral] instructions,” and that if “I deviate in my oral instructions, from the written instructions ,in any way, it is the oral instructions you must follow. The trial judge also charged that the jury was not to allow the receipt “of a written copy to lead you to believe that you may only consider only certain portions to the exclusion of others,” and that if anything was not understood, the jury was to send the judge a note. There was no objection by defense counsel to either the written instructions or the court’s instructions. Following several jury notes indicating a deadlock, the court provided an Allen charge on two occasions [the jury requested to “re-hear” this charge], over objection and a request for a mistrial. The court also dealt with several scheduling issues in terms of jury availability and vacations during the period of deliberations. The first department affirmed 3-2, and in particular held the claimed written instructions error unpreserved and moreover that it was not mode ot proceedings error based on the defense attorney’s “implied consent” to the written instructions. See C.P.L. 310.30. Justices Renwick and Moulton dissented in part on their conclusion that the jury verdict was coerced by the Allen charges. Leave to Appeal to the Court of Appeals has been granted.

Response to Jury Notes

People v. Vincent Myers, __ N.Y.3d __ (5/9/19) [7/0; Memorandum].

96 Following the discovery by appellate counsel of a purported jury note in the file that had never been formally marked as an exhibit or address by the trial court, the appellate division remitted and ordered a hearing in order to resolve a “significant ambiguity” in the record. The Court of Appeals affirmed the findings made at that hearing that the note was a “draft or derelict note that was nver submitted to the court and discarded by the jury,” as supported by the record. As such, the Court distinguished People v. Parker, 32 N.Y.3d 49, 62 (2018), which recently held that the only remedy for for a failure to respond to a note is “reversal and not a reconstruction hearing,” on conclusion that the hearing was not to determine whether the trial court complied with the requirements of People v. O’Rama, 78 N.Y.2d 270 (1991), but to determine whether any request for information was actually made by a deliberating jury. Judge Garcia concurred with the result and while criticizing the “arbitrary” per se reversal requirement of Parker, in a review of the O’Rama rule over the last, almost three decades, suggested that Parker indeed applied in this case in a “straightforward application.” However, he noted that while he agreed with the result, and invited legislative reform, he was not “persuaded by its means.”

People v. Jimmy Copeland, __ A.D.3d __, 2019 NY Slip Op 06507 (2nd Dept. 9/11/19).

During deliberations in the defendant’s Brooklyn murder and weapons possession case, the jury submitted a note, “We would like to see the difference between first and second degree murder. (Powerpoint).” The trial court informed counsel, the defendant and his co-defendant that the jurors “want to be re-charged on first and second degree.” The jury was brought back into the courtroom, the judge then told the jury that he would “review with te [the jury] first and second degree murder charges,” and then the court re-read the instructions on first and second degree murder. The jury then submitted another note that read, “Phone Records Between Jimmy & Ragene - When Did Communication Start?” During a discussion between the court and the attorneys on the record, the trial court mentioned that the jurors “want to know when the communications start. And the communications started on June 11. And the stipulation covers it. So we’ll read back the stipulation.” Defense counsel then indicated that he “unders[oo]d the ruling,” and that he “ha[d] and exception,” after he argued that a certain question and answer should be included. After the jury was returned to the courtroom, the court stated, “We received your note. We brought in the records for you. There was a stipulation that was entered into between the parties concerning yoru request of when did the communications start. And I am going to have the court reporter read you that stipulation at this time.” After the court reporter did this, the court toled the jury that the it “jhad the records concerning that call if [the jury] want[s] to look at them.” The appellate division reversed on the holding that the since the trial judge failed to read the entire contents of the two notes into the record with no indication that the entire contents were shared with counsel and thus merely paraphrased what was in the notes, even with counsel’s

97 “awareness” of their contents, this was not in compliance with the court’s statutory and O’Rama requirements as a mode of proceedings error with no objection required.

People v. Robert Henry, 173 A.D.3d 1470, 2019 NY Slip Op 05024 (3rd Dept. 6/20/19).

The court reversed the defendant’s murder conviction following a Warren County trial due to the trial court’s failure to comply with the procedural protocols of People v. O’Rama, 78 N.Y.2d 270 (1991) and its progeny in a case in which following the receipt of a note relating to the count in the indictment that charged second degree murder and justification from a deliberating jury, the court discussed the matter with the attorneys off-the-record, but failed to conduct its colloquy with the lawyers on the record about the note, nor was the note ever read into the record. The court, however, let stand other counts (among others, burglary and robbery), on which the defendant was convicted, since, under People v. Walston, 23 N.Y.3d 986, 990 (2014), only that count was impacted. In affirming other counts on which the defendant was convicted, the court held that the false promise by the police that they were not recording the defendant’s statement to them, which was a condition of the defendant’s agreeing to talk to them, did not vitiate the validity of the defendant’s Miranda waiver and that the trial court did not err in admitting a letter the defendant wrote to his counsel but sent to his girlfriend with instructions that she copy it and send the original to his attorney on the conclusion that the defendant had no reasonable expectation of confidentiality under C.P.L.R. 4503(a) where he disclosed its contents to a third party.

People v. Sharif Croom, __ A.D.3d __, 2019 A.D.3d __ (2nd Dept. 4/3/19).

When evidentiary exhibits were requested by the deliberating jury in the defendant’s robbery and related crimes trial, the court marked those notes as exhibits and read them into the record in the presence of both counsel. In affirming, the appellate division relied on People v. O’Rama, 78 N.Y.2d 270, 277-278 (1991), to hold that the defendant’s presence was not required. Additionally in so ruling the court held that since at the beginning of deliberations the defendant consented to providing the jury with exhibits upon the jury’s request without reconvening, there was no error in furnishing the jury with requested exhibits in this fashion,

People v. Anthony Ott, 165 A.D.3d 1601 (4th Dept. 10/9/18), N.Y.L.J. 10/25/18 @ p. 1.

98 The trial court violated the core requirements of C.P.L. 310.30 in failing to advise counsel on the record of substantive jury notes submitted during deliberations, (i.e., a request to be provided with a written copy of the court’s instructions and a re-reading of the court’s legal instructions), in a case in which the judge merely informed the parties that the jury had sent several notes and, with respect tot he second note, that the jury had requested a re-reading of the charges, but hwere the court did not mention the contents of the first note. Citing People v. Morrison, 32 N.Y.3d 951, 2018 NY Slip 04777 (2018), the court rejected the claim that the “gist” of the note was sufficient and reversed the defendant’s second degree murder conviction.

Announcement of Verdict

People v. Barrington Folkes, __ A.D.3d __, 2019 NY Slip Op 04719 (2nd Dept. 6/12/19).

The defendant was indicted on 135 counts of grand larceny based on allegations that he personally went to three Citibank branches with fictitious identification withdrew sums of money from accounts he did not own and that he engaged in the same activity with respect to 13 counts in Queens. When the jury was polled after the foreperson announced the verdict, one juror hesitated in affirming his verdict. Following inquiry by the court of the juror outside the presence of the other jurors, the juror indicated that he “felt pressured” with respect to the defendant’s alleged conduct in one Brooklyn branch, but that while no one threatened him, the others disagreed with his reasoning. Following the defendant’s mistrial motion, the court then re-instructed the entire jury that the verdict wold not be accepted, that they should continue their deliberations and that no juror should surrender his honestly held view simply because you want the trial to end. The appellate division affirmed on the conclusion that the motion for a mistrial based on the juror’s hesitation was properly denied after the inquiry by the court in which the trial court clarified that any pressure he perceived did not “arise out of matters extraneous to the jury’s deliberations or not properly within their scope,” [quoting People v. Pickett, 61 N.Y.2d 773, 775 (1984)], and, moreover, that the verdict was not the product of actual or threatened physical harm,” [quoting People v. Simms, 13 N.Y.3d 867, 871 (2009)].

Motions to Set Aside Verdicts

People v. Timothy Newman, __ A.D.3d __, 2019 NY Slip Op 03729 (1st Dept. 5/14/19)

99 Notwithstanding the narrow exception for conducting a hearing post-verdict to probe a jury’s deliberative process on a showing that racial bias cast serious doubt on the fairness and impartiality of the jury’s deliberative process under Pena-Roodriguez, 137 S.Ct. 855, 869 (2017), a juror’s comments during deliberations about his general awareness of conflicts between “African Americans” (the defendant’s ethnicity) and “Jamaicans” or “ Caribbeans” (the victim’s ethnicity) did not rise to the level of overt bias against or in favor of either group, nor did they “tend to show that racial animus was a significant motivating factor in the jury’s vote to convict” per Pena-Rodriguez, 137 S.Ct. At 869.

People v. M. Robert Neulander, 162 A.D.3d 1763, 2019 NY Slip Op 04925 (4th Dept. 6/29/18).

A majority of the third department held that a sworn juror, Juror # 12 engaged in substantial misconduct during the defendant’s Syracuse murder trial by sending and receiving numerous texts [about 7,000], about the case, including one from her father in which he implored her to “Make sure [defendant’s] guilty,” notwithstanding daily admonitions from the trial court not to do this and where a post-verdict hearing revealed that following the verdict a discharged alternate juror had advised the court of this conduct and that forensic analysis revealed that the Juror # 12 had deleted numerous such text messages thereafter and then submitted a perjurious affidavit about her conduct. In so ruling, the majority held that the the evidence at a post-verdict hearing established by a preponderance of proof that the juror’s misconduct “created a substantial risk that a substantial right of the defendant was prejudiced.” The dissenters, Justices Smith and Winslow would have affirmed on their conclusion that any prejudice as found my the majority was speculative notwithstanding the juror’s misconduct. Leave to appeal to the Court of Appeals has been granted and the oral argument was held on September 5, 2019. The case is discussed in D. Clark, “New Murder Trial Weighed Because Juror Received Test Messages,” N.Y.L.J. 9/6/19 @ p. 1.

People v. Howard Freire, __ A.D.3d __, 2019 NY Slip Op 00460 (2nd Dept. 1/23/19).

The defendant moved pro se to set aside his guilty verdict of first degree robbery following his Queens trial. His defense attorney declined to adopt it. The trial court declined to review it on grounds that “hybrid representation” was not required, but following sentencing and the defendant’s appeal, the appellate division remitted the case for further proceedings with a direction that the defendant’s appellate counsel represent the defendant. Following proceedings in the Supreme Court the second department affirmed on the holding that the trial court determination denying appellate counsels’ request for an adjournment to investigate the

100 contentions made in the defendant’s original pro se motion was proper. Additionally, the appellate division agreed with the overall determination of the trial court to deny the motion on the merits where the claims were based on both on the record and outside the record facts, and that as such were not properly the subject of a C.P.L. 330.30(1) application, without prejudice to the defendant bringing a C.P.L. 440.10 motion,.

Substantive Law

People v. Damian Jones, __ N.Y.3d __, 2018 NY Slip Op 08058 (11/27/18) [7/0; Memorandum], N.Y.L.J. 11/28/18 @ p. 25.

The Court held that proof of the defendant’s knowledge of the existence of the criminal enterprise and the Defendant’s intention to participate in its affairs in an enterprise corruption prosecution involving a motorcycle theft ring and brought pursuant to the Organized Crime Control Act [OCCA] P.L. 460.20(1)(a) was insufficient as a matter of law, and as such, reversed an appellate division order to the contrary and dismissed the indictment. In so ruling, the Court held that the evidence of trhe defendant’s participation in the three requisite criminal acts included in the pattern activity alone did not establish the defendant’s knowledge of the existence of the criminal enterprise and the nature of its activities. Judge Rivera concurred and in so doing, noted that “whatever else ...[the] evidence proved, one thing it did not establish was defendant’s participation in a criminal enterprise,” which was a result of the limited breadth of OCCA as enacted by the Legislature in 1986, which unlike the federal Racketeer influenced and Corrupt Organizations Act, 18 U.S.C. 1961, requires proof of the “enterprise as an “ascertainable structure,” and “cognizable” structure, separate and apart from proof of the Defendant’s participation in pattern crimes. See People v. Western Express Intern, Inc. 19 N.Y.3d 652, 658-659 (2012) for a similar ruling.

People v. Rodney Watts, __ N.Y.3d __, 2018 NY Slip Op 7926 (11/2018) [7/0; Fahey, J.], N.Y.L.J. 11/21/18 @ p. 21.

Since an event ticket, such as a concert or sports event ticket, affects a legal right, interest, obligation, or status within the meaning of P.L. 170.10(1), a defendant may be prosecuted under P.L. 170.25 for possession of counterfeit event tickets. As such, the Court rejected the defendant’s

101 claim that his indictment on these charges was jurisdictionally defective because a sports event ticket was merely a revocable license, that the doctrine of ejusdem generis (i.e., only those instruments enumerated in the forgery statute were applicable) applied and that as a matter of policy the forgery statute should not apply to sports event tickets.

People v. Prince Rodgers, 174 A.D.3d 924, 2019 NY Slip Op 06002 (2nd Dept. 7/31/19).

The defendant was convicted of third degree criminal possession of a weapon following a Westchester trial based on testimony that he was standing in front of a building while drinking beer with two other men, that the police approached and after instructing him to place his hands on the hood of a car, conducted a pat-down and found a razor blade “wrapped in black tape” with a corner piece exposed what was described by a detective as “something that you would put ina utility knife.” The Defendant had not fled and cooperated with the police instructions. The appellate division reversed on a weight of the evidence review and held that the People failed to prove that the razor blade was “designed, made or adapted for use primarily as a weapon,” as required by P.L. 265.15(4) and applicable case law where there was no testimony by the police witnesses that the primary use of this instrument, based upon the black tape, was as a weapon and where there was no evidence that that defendant considered the instrument to be a weapon.

People v. Kareem Santiago, __ A.D.3d __, 2019 NY Slip Op 04897 (1st Dept. 6/18/19).

There was sufficient evidence to support the defendant’s acting in concert conviction for fourth dergree criminal possession of stolen property, a credit card that was forcibly stolen during a robbery on the upper west side of Manhattan based on proof that he had “only a transient, yet indisputable presence in the company of two other suspects, notwithstanding that the defendant was acquitted of the robbery. Thus, where the victim was robbed of her purse by three men and got a “clear and unobstructed view of the perpetrators, including their faces,” and the defendant was captured in the company of two other men, who were suspects while hiding in a three foot hole also described as a “oily sump pit” in the boiler room which had to be opened by the police department’s emergency services unit, there was sufficient proof that the defendant was in “joint constructive possession of the victim’s credit card, together with his co-defendants.”

People v. Jonathan Truluck, __ A.D.3d __, 2019 NY Slip Op 04969 (2nd Dept. 6/19/19).

102 The defendant and his brother were sitting on a grate on an elevated subway platform when they were approached by two NYPD officers on foot patrol. The officers passed the two men without saying anything. Shortly thereafter, the officers returned to where the two brothers were still sitting and even though the police had observed nothing suspicious or criminal, one, a female, police officer asked, “what was going on?” When neither brother responded, both officers again repeated the question. At that point the defendant’s brother responded with profanity at the female officer. The defendant attempted to restrain his brother and told him to “calm down.” The defendant’s brother, however, became more agitated and the defendant held him around the waist and ushered him into a nearby store. The female officer later testified that they then followed the two men just to keep and eye on the defendant’s brother who continued to yell at the officers. The female officer radio’ed for non-emergency back-up and although he “asn’t doing anything” at that point, the defendant unexpectedly turned toward her and punched her in the face. The female officer had not spoken to the defendant prior to the punch, nor had she given him any commands and neither officer testified at trial, that they intended to arrest the defendant for anything. Atrial, in response to a jury note requesting the definition of lawful duty, the court, on consent of both parties, instructed the jury that the police may make a lawful arrest when they have reasonable cause to believe that an offense was committed in an officer’s presence. The appellate division reversed the defendant’s second degree assault conviction on a factual and weight of the evidence review on the conclusion that where the People, by consenting to the charge on lawful duty agreed to a higher burden, there was insufficient proof that at the time of the alleged assault, the female officer was exercising a “lawful duty.”

People v. Robert Adrian, __ A.D.3d __, 2019 NY Slip Op 04454 (1st Dept. 6/6/19).

The trial cioourt properly admitted testimony referring to the defendant as a person speaking on wiretapped conversations during the defendant’s narcotics trafficking trial where circumstantial evidence “strongly connected” the defendant to at least one of three intercepted phones and where a wiretap monitor testified from personal knowledge that he had become familiar with the recorded voices he heard, and that the same person was speaking on all three phones. Additionally, the court held that the trial court properly admitted evidence of a drug transaction as an uncharged overt act that occurred during the pendency of a charged conspiracy, even though the major overt acts took place at the end of the conspiracy where the uncharged sale supported the reasonable inference that the uncharged sale was in furtherance of an ongoing conspiracy and where the defendant received sufficient notice that the evidence of the uncharged overt act would be introduced. Finally, the court also held that there was sufficient proof to support the defendant’s major drug trafficker conviction under P.L. 220.77, where the evidence showed the defendant was a profiteer under P.L. 220.00(20)(b), because he was clearly part of a large international “controlled substance organization” under P.L. 220.00(18) with many members and moreover, “arranged” or “planned” the execution of at least one transaction and because he gave orders to others, thereby exercising “managerial responsibility” under P.L. 220.20)(b).

103 People v. Maurice Harmon, __ A.D.3d __, 2019 NY Slip Op 04761 (1st Dept. 6/13/19).

The defendant’s conviction for first degree promoting prison contraband was affirmed over claims that as a matter of law his was properly convicted of possessing “dangerous contraband” pursuant to P.L. 205.00(4) in a prison based on his possession of 35 bags of heroin. In affirming the court noted that while small amounts of marijuana have been held not to qualify under People v. Finley, 10 N.Y.3d 647, 657 (2010), here with specific testimony that heroin can easily cause an overdose, this was sufficient as a matter of law and also ona sufficiency and weight of the evidence review.

People v. Scharkey James, 170 A.D.3d 477, 2019 App. Div. Lexis 1700, 2019 NY Slip Op 01708 (1st Dept. 3/11/19).

The proof at trial reflected that the defendant, along with his cousin, Jermaine, approached the husband and wife victims while they were walking on West 87th Street; Jermaine aimed a gun at the husband and directed him to get up against a car. The husband placed his hands on the car and felt the gun press against his back or left side. The defendant then moved the wife closer to the building line and demanded her phone and cash. The wife complied and handed over her iPhone 4 with a pink case and money. Jermaine, with the gun still pressed against the husband’s back, demanded the husband’s money. The husband pulled out his wallet and dropped it to the ground. After removing some money from the wallet, Jermaine then demanded the husband’s phone. The husband complied after some hesitation. The appellate division affirmed the defendant’s first and second degree robbery conviction and thus rejected the defendant’s contention that he is guilty of unarmed third degree robbery involving the wife on the holding that there was sufficient proof that his cousin’s actions, only a few feet away from him were part of his joint effort with his cousin “as a team” to work together to rob both victims. In affirming, the court also ruled that the trial court’s determination to admit portions of the defendant’s statements to the police in which he admitted to an uncharged crime of planning to commit a robbery with his cousin immediately before the robbery in question was probative as Molineux proof on the issue of intent, especially where the defendant raised the claim that he was not acting in concert with the cousin.

People v. Lonnie Knight, __ A.D.3d __, 2019 NY Slip Op 01135 (1st Dept. 2/14/19).

The court affirmed the defendant’s weapons possession conviction based on his unlawful possession of a gravity knife as a person previously convicted of crimes, and in so ruling held that

104 the defendant lacked standing to complain that P.L. 265.02(1), which such criminalizes possession infringed on his Second Amendment rights. The basis for the appellate division’s holding was that consistent with District of Columbia v. Heller, 554 U.S. 570, 626 (2008), states are broadly empowered to prohibit convicted criminals from possessing weapons and thus the defendant’s claim that possession by anyone of a gravity knife violates the constitutional right to bear arms. Finally, the court also held that the trial judge did not err in rejecting the defendant’s request that the jury be given the “opportunity” to experiment with the defendant’s knife to determine whether it had the characteristics of a gravity knife where the defendant offered no explanation of how such an experiment could be performed safely by the jurors and where the jurors observed an officer’s court demonstration of how the knife operated. Compare, People v. Cristo Sauri, __ A.D.3d __, 2019 NY Slip Op 02359 (2nd Dept. 3/27/19), which reversed a gravity knife possession conviction on a holding that the evidence was legally insufficient and lacked the weight of proof to establish that the knife in question was a gravity knife under P.L. 265.00(5). In so ruling in that case, the appellate division noted that alghough an officer demonstrated the operation of the knife at trial, the record contains “no contemporaneous description of what the jury saw during that demonstration [quoting, People v. McKinnon, 15 N.Y.3d 311, 316 (2010)] and in particular, whether or how the knife locked.

People v. Don P. Sipp, 169 A.D.3d 1423, 2019 NY Slip Op 00771 (4th Dept. 2/1/19).

A majority of the appellate division held by a 3-2 vvote that tere was sufficient record proof to support the jury’s verdict which convicted the defendant of second degree assault in Seneca County and in particular, the element of serious physical injury, based on a “serious and protracted disfigurement” of the victim’s face as required in P.L. 120.05(4) and P.L. 10.00(1) as demonstrated by the number and sizes of scars on the victim’s face. In affirming the majority also held that the county court properly denied the defendant’s request to submit third degree assault as a lesser included offense on the conclusion that there was no reasonable view of the evidence that would have supported a finding that the victim sustained only physical, as opposed to serious physical injury. Leave to appeal was granted by a a dissenter, Justice Carni on 3/20/19.

People v. Brian Chambers, __ A.D.3d __, 2019 NY Slip Op 00616 (2nd Dept. 1/30/19).

There was sufficient proof to support the defendant’s conviction of reckless endangerment and related crimes in a case in which the People established that the defendant drove at excessively high speeds through Staten Island as he attempted to evade the police for over 5.5 miles as he drove through numerous stops signs and red lights, struck a police vehicle and side-swiped another and repeatedly drove in oncoming traffic lanes. In affirmed the court noted that while the trial court should not have permitted an off-duty police officer to testify that the car that was side-

105 swiped had a pregnant woman in it after a Sandoval ruling, the error was harmless in light of the overwhelming proof of guilt.

People v. Ramel Robinson, __ A.D.3d __, 2019 NY Slip Op 00565 (1st Dept. 1/29/19).

There was sufficient evidence to support the defendant’s Manhattan second degree kidnaping and related crime conviction based on the People’s overwhelming proof that the defendant intended to prevent his five year old niece’s “liberation” by secreting her or holding her in a place she was not likely to be found in a case in which the defendant, who was seeking revernge against the victim’s mother took the victim to stay at his girlfriend’s motel, a location not known by the mother, and did not return or disclose her whereabouts when the victim’s mother and other relatives repeatedly contacted him. The court noted in its affirmance that the sufficiency of proof was not undercut by the fact that the defendant at times left the victim with his girlfriend, whom he expected to assist him in secreting the girl and moreover took the victim to public places, among other locations, where it was unlikely she could be found.

People v. Ira Gross, __ A.D.3d __ (2nd Dept. 1/23/19), N.Y.L.J. 1/25/19 @ p. 24.

There was insufficient proof to support the defendant’s larceny, conspiracy and related crimes prosecution arising out of proof presented by the attorney general that the defendant and others, both individuals and corporations distributed adulterated HIV and AIDS medications on the conclusion that individual co-conspirator’s (Schabel) knowledge of and participation in the scheme on behalf of a corporate defendant resulted in imputed knowledge to the principal from the agent and that as such, there could be no false representation on which other corporate participant relied such the these counts were reversed. The appellate division further reversed the defendant’s criminal diversion of prescription medications and prescriptions under P.L. Art. 178, on the conclusion that the element of a lack of a “medical need” was not sufficiently established. In so ruling, the court observed that any remedy in the statutory framework would be referred to the Legislature. The court, however did affirm the defendant’s money laundering convictions on the holding that there was sufficient proof in this regard. An additional issue relating to the admission of certain wiretapped recordings is discussed above.

People v. Marcelino Allende, 168 A.D.3d 464 (1st Dept. 1/10/19).

Although there was no evidence that an eyewitness saw the display of what appeared to be a

106 firearm during the commission of a robbery, there was no evidence that the vivtim ever saw it. Thus, the evidence failed to establish the element of displays what appears to be a firearm and as such that count was ordered dismissed. In so ruling, the court referenced People v. Moon, 205 A.D.2d 372 (1st Dept. 1994), which reversed on similar facts with dictum, citing, in turn, People v. Green, 143 A.D.2d 144 (2nd Dept. 1988), which noted, “In the appropriate case, of course, other witnesses can supply the requisite testimony that the victim observed the display.” leave to appeal to the Court of Appeals has been granted. 2019 N.Y. Lexis 1531 (4/2/19) (Rivera, J.)

People v. Trevor Lucas, __ A.D.3d __, 2018 NY Slip Op 07755 (2nd Dept. 11/14/18).

The defendant, a four others, all alleged members of the S.N.O.W Gang were tried together in Queens in connection with a first and second degree conspiracy indictment that charged them with agreeing to caus the death of two rival gang members, Leighton Friday and Nicholas Morris. At the joint trial, no co-conspirators testified for the prosecution,. Instead, the People, among other proof, introduced testimony from police officers involved in the investigation and introduced evidence of thousands of social media posts of the defendants and numerous charged and uncharged co-conspirators. The appellate division reversed the defendant’s two counts of second degree conspiracy conviction (the defendant was acquitted of first degree conspiracy by the jury), on the holding that viewing the proof in the light most favorable to the People, there was insufficient direct of circumstantial evidence that the defendant actually entered into an agreement by conspiring with others to cause the death of the targets of the conspiracy, notwithstanding proof that the defendant did conspire with others to retaliate against rival gang members. As such, the trial court should have entered a trial order of dismissal at the end of the People’s proof.

People v. Vishwa Nabi, __ A.D.3d __, 2018 NY Slip Op 07332 (2nd Dept. 10/31/18).

At trial the prosecution presented prrof that the police were monitoring a particular BMW vehicle by a GPS device which had been installed pursuant to a court order, that they tracked the car from Quuens into Nassau County, that officers conducting surveillance observed two occupants in the car, the defendant and another person, engage in conduct consistent with burglarizing a home in New Hyde Park, that after the BMW drove away, the officers went intot he home whoch showed signs of false entry and that this information was relayed back to Queens, where police conducted a traffic stop, during which time they observed items that appeared to be burlgary proceeds and burglar’s tools. The appellate division affirmed the defendant’s burglary conviction an in so doing rejected claims that the GPS order was not based on a sufficient probable cause based on a “Reasonable belief” that evidence of reasonable activity would be found if the vehicle were monitored and that venue of the defendant’s activities in a conspiracy was properly based on

107 Queens based on a preponderance of the evidence that the the defendant and hsi accomplice entered into a conspiracy in Queens County to commit burglary in Nassau County with certain acts taken in Queens County in furtherance thereto.

People v. Marcelino Allende, __ A.D.3d __, 2018 NY Slip Op 06967 (1st Dept. 10/18/18).

The court held that the evidence in the defendant’s robbery trial did not establish the element of display what appears to be a firearm under People v. Smith, 29 N.Y.3d 91, 96 (2017), where the robbery was accomplished by is co-defendant in an acting in concert case, assaulting the victim and taking his wallet and where an eyewitness, but not the victim saw the display of what appeared to be a firearm. In so ruling, the court reversed the defendant’s first degree robbery conviction but affirmed his second degree robbery conviction.

People v. Robert Maffei, __ A.D.3d __, 2018 NY Slip Op 07150 (2nd Dept. 10/24/18).

The defendant shot the victim, who was unknown to him, while the two were riding as passengers in two separate vehicles traveling side-by-side at about 40 mph on an entrance ramp on the Belt Parkway in Brooklyn. The gun discharged a single bullet into the rear driver’s side of the victim’s car. It missed the rear passenger but hit the victim, killing him, as he was seated in the rear passenger seat. The appellate division affirmed the defendant’s depraved indifference murder conviction, against both sufficiency and weight of the evidence challenges, on the holding that the evidence established that the defendant shot indiscriminately towards the rear passengers of the other car with depraved indifference, rather than with a specific intent to kill.

People v. Mayer Herskovic, __ A.D.3d __, 2018 NY Slip Op 06763 (2nd Dept. 10/10/18), N.Y.L.J. 10/16/18 @ p. 1.

The appellate division reversed the defendant’s second degree gang assault, unlawful imprisonment and menacing conviction in a case involving allegations that the defendant and approximately 20 others (all Hasidic men) assaulted the victim on the conclusion that on a weight of the evidence review, where the complainant was not able to identify any of the persons who assaulted him and, along with other witnesses, provided conflicting accounts of the assualt and finally the DNA evidence was “less than convincing,” (there was a very small sample tested on a

108 sneaker worn by the complainant by “high-sensitivity” DNA analysis that did not exactly meet the Office of the Chief Medical Examiner’s protocols for testing and the likelihood ratio” that the defendant was one of two contributors to the mixture was weak and failed to take into account the genetic history of the defendant, a member of the Hasidic community.

Sentencing

People ex rel. Erick Allen v. Bruce Yelich, __ N.Y.3d __ (12/11/18) [7/0; Memorandum], N.Y.L.J 12/12/18 @ p. 26.

As the petitioner conceded, the Department of Corrections and Community Supervision was not bound by the New Jersey sentencing court’s recommendation and as such, there was no reason to disturb the appellate division’s determination that the petitioner was not entitled to relief in terms of computation of time for community supervision under P.L. 70.45(5)(d).

Delay in Sentencing

People v. Nathaniel Taylor, __ A.D.3d __, 2019 NY Slip Op 02822 (1st Dept. 4/16/19).

Where the People received actual notice that the defendant was in custody in another state from defense counsel and wished to be produced for sentencing, notwithstanding any prior delays, the one year period of delay attributable to the People was “unreasonably long.” As such, the lower court should have granted the defendant’s motion to dismiss under C.P.L. 380.30(1) on delayed sentence grounds. See Also, People v. Drake, 61 N.Y.2d 359 (1984), relied on by the court.

Consecutive Sentences

People v. John Smith, __ A.D.3d __, 2018 NY Slip Op 08695 (2nd Dept. 12/19/18).

109 Where the defendant’s conviction for three counts of third degree weapons possession was based on his constructively possessing three guns in a safe on a ceratin date, the trial court should not have imposed consecutive sentences where there was no proof of any separate act by the defendant that constituted possession of one of the guns, as opposed to two of the other guns. As such concurrent sentences were required. See People v. McKnight, 16 N.Y.3d 43, 47 (2010) and People v. Dean, 8 N.Y.3d 929 (2007), cited by the court. See also People v. Nicolus Bailey, __ A.D.3d __, 2018 NY Slip Op 08674 (2nd Dept. 12/19/18) and People v. Sheldon Leftenant, __ A.D.3d __, 2019 NY Slip Op 05152 (2nd Dept. 6/26/19) for similar holdings.

Enhanced Sentences Due to Violation of Plea Conditions

People v. Billy Andre, __ A.D.3d __, 2019 NY Slip Op 00136 (2nd Dept. 1/9/19).

Where the record at the defendant’s plea proceeding failed to indicate that the trial court imposed a condition on the plea that the defendant appear for sentencing or any adjourn date for sentencing or any other conditions, the enhancement of the defendant’s sentence for this reason was erroneous. In reversing and remanding for re-sentencing, the appellate division noted that it was reaching the issue in the interest of justice notwithstanding that the defendant never objected at sentencing or moved to withdraw his plea.

Excessive Sentences

People v. Marianne Fassino, __ A.D.3d __, 2019 NY Slip Op 01227 (2nd Dept. 2/20/19).

The appellate division modified the defendant’s sentence following her jury trial conviction for first degree falsifying business records and first degree endangering the welfare of an incompetent or physically disabled person from a split sentence of 6 months incarceration and five years probation total to a period of three months in jail and five years probation total on the conclusion that the sentence was excessive. See also, People v. Kimberly Lappe, __ A.D.3d __, 2019 NY Slip Op 01232 (2nd Dept. 2/20/19) [6 months incarceration for a several count conviction of falsifying business records modified to 3 months incarceration with no probation and a 9 month sentence for an endangering the welfare of an incompetent or physically disabled person in the first degree and 30 days on a conviction of a wilful negligence and failure to report modified to 3 months incarceration] and People v. Kethlie Joseph, __ A.D.3d __, 2019 NY Slip Op 01231 (2/20/19) [9

110 months and three years probation on a criminally negligent homicide conviction modified to 9 months without probation] for similar modifications of sentences arising out the same trial concerning different defendants.

People v. Levi Mitchell, __ A.D.3d __, 2019 NY Slip Op 00371 (1st Dept. 1/23/19), N.Y.L.J. 1/24/19 @ p. 22.

The court modified the defendant’s sentence of 4-8 years following his conviction after trial of criminal possession of a forged instrument to 3-6 years in a case in which the defendant, 53 year old homeless person with medical issues entered a pharmacy and attempted to pay for a tube of toothpaste by using a counterfeit $20 bill. In so holding the court noted that where the immediate object of the sentence was to purchase basic human necessities, the sentence notwithstanding his extensive criminal history which was somewhat remote, i.e., his most recent felony was more than nine years prior to this incident at trial.

People v. Marcello Allende, __ A.D.3d __, 2019 NY Slip Op 00195 (1st Dept. 1/10/19).

While the first department reversed the defendant’s first degree robbery conviction due to a failure to prove “displays what appears to be a firearm,” in an accessorial liability case, it affirmed the defendant’s second degree conviction arising out of the forcible taking of a victim’s wallet who was assaulted during this crime. Justice Renwick, however, dissented on the conclusion that the 8 year determinate sentence for a first-time, 21 year old offender whose mother died when he was 16 was too severe and would have modified it to 5 years. See People v. Watson, 162 A.D.3d 855, 880 (1st Dept. 2018) [the principle objectives of “societal protection, rehabilitation, and deterrence” must be furthered by the punishment imposed, Barrios, J., dissenting.].

People v. Stanley Kocot, __ A.D.3d __, 2018 NY Slip Op 08691 (2nd Dept. 12/19/18).

The fact that the sentence imposed after trial was greater than offered during plea negotiations does not standing alone, establish that the defendant was punished for exercising his right to trial in a predatory sexual assault against a child and related-crimes case.

111 People v. Alvin Richard, __ A.D.3d __, 2018 NY Slip Op 08152 (2nd Dept. 11/28/18).

A majority of the court modified the defendant’s sentence of 15 years followed by 5 years of post- release supervision to 10 years followed by 5 years of post-release supervision in a case in which the defendant was convicted on first degree manslaughter as a lesser charge to his indictment for second degree murder in a case in which the victim suffered head trauma and lacerations, along with a high level brain dysfunction and then died seven months after an attack by the defendant on the conclusion that it was excessive. A dissenter, Roman, J, would have affirmed on the ground that trial judges are afforded wide discretion in imposing sentence and that here, in light to the violent crime that no doubt resulted in a lengthy period of pain, the sentence was neither unduly harsh or excessive.

Utilization of Sealed Testimony at Sentencing

People v. Anonymous, __ A.D.3d __ (1st Dept. 2018), N.Y.L.J. 5/3/18 @ p. 22.

The defendant pleaded guilty to narcotics possession in the fourth degree and received a sentencing promise from the court conditioned on his not being arrested or committing new crimes. Prior to sentencing the defendant was arrested for robbery. At that trial, he testified in his own defense, and while denying committing the robbery, admitted to a drug crime. The defendant was acquitted after trial of the robbery charge and the record of that case automatically sealed pursuant to C.P.L .160.50. On the People’s application, the sentencing court unsealed the robbery trial record pursuant to C.P.L .160.50(1)(d)(ii). The defendant was thereafter sentenced to eight years incarceration as a second felony offender. The first department affirmed the defendant’s sentence on the holding that while the unsealing order was improper since it was not authorized to further a law enforcement agency exception to allow the People to make a sentencing recommendation under Matter of Katherine B., 5 N.Y.3d 196 (2005), any violation of the sealing statute pursuant to People v. Patterson, 78 N.Y.2d 711 (1991), did not warrant re-sentencing since the information relied on was that of an uncharged crime (the narcotics crime) and not the acquitted charge (the robbery) on the conclusion that even suppressed information may be considered at sentencing. In so ruling the court never reached the alternative harmless error argument advanced by the People, that the defendant violated a condition of his plea while awaiting sentencing.

112 Prior Felony Offenders

People v. Michael Thomas, __ N.Y.3d __, 2019 NY Slip Op 01167 (2/19/19) [4/3; Stein, J.].

A majority of the Court held that because the date on which a sentence is first imposed upon a prior conviction - not the date of any subsequent re-sentencings on tat same conviction - is the relevant date for purposes of determining when “[s]entence upon such prior conviction [was] imposed” under P.L. 70.06(1)(b)(ii), a re-sentence upon that prior conviction - imposed after the original sentence was vacated as illegal - re-sets the date of sentencing for purposes of determining a defendant’s second felony offender status. Thus, where the defendant was convicted in 1989 on his guilty plea of second degree attempted robbery and was later sentenced illegally as a second felony offender to 2 ½ - 5 years in prison and later that years was convicted in another county, also on a plea of guilty to first degree attempted robbery and was again sentenced erroneously as a second felony offender to 3 1/2-7 years incarceration and thereafter in 1993 was convicted in 1993 following a jury trial of third degree robbery and sentenced again as a second felony offender, based upon the two prior 1989 convictions, (in the interim and long after serving his time, the defendant moved to vacate his sentenced on his 1993 conviction and was re- sentenced correctly in 2009 and 2012) he was held properly sentenced as a second felony offender in 1993 because the “sequentiality requirement” of P.L. 70.06 was satisfied under the analogous case of People v. Boyer, 22 N.Y.3d 15 (2013). Judge Fahey, joined by Judges Rivera and Wilson, dissented on the conclusion because “[l]egality should prevail over chronology,” the court was required to look at the first legal sentence “imposed” in 1993, not the original sentences in 1989 and thus, the defendant could not be a second felony offender based upon an illegal sentence.

People v. Richard Salako, __ A.D.3d __, 2018 NY Slip Op 06770 (2nd Dept. 10/10/18).

The People failed to satisfy their burden of establishing that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in New York and in particular, their claim that the California offense of robbery in the first degree based on the required statute-to-statute comparison of the elements of each offense. As such the defendant’s adjudication as a second felony offender was vacated and the case remitted to the lower court for re-sentencing.

113 Solitary Confinement

Jonathan Apodaca v. Rick Raemischk /Donnie Lowe v. Rick Raemisch, __ U.S. __ (10/9/18).

Justice Sotomayor dissented from the denial of certiorari and note her opinion that the issue of whether solitary confinement or “administrative segregation” (i.e., single cell confinement for 23 of 24 hours a day for up to 25 months and set limited periods of exercise) as part of a sentence determined by Colorado prison officials violates the Eighth Amendment’s ban on cruel and unusual punishment should be reviewed by the Court, especially where there are between 80,000 to 100,000 inmates so confined nationally.

Fines

Tyson Timbs v. Indiana, __ U.S. __, 139 S.Ct. 682 (2/20/19) [9/0; Ginsburg, J.].

The Eight Amendment’s excessive fines clause is an incorporated protection applicable to the States under the 14th Amendment’s Due Process Clause. As such, efforts by Indiana to forfeit a Land Rover SUV valued at $42,000 that was seized by the police as an instrumentality to commit the crime of heroin trafficking which was four times the maximum monetary fine assessable against him ($10,000), for his conviction for dealing in a controlled substance and conspiracy to commit theft and sentence of home detention, five years probation and the payment of court fees was held grossly disproportionate to the gravity of the defendant’s offense. In so ruling the Court rejected the State’s argument that the excessive fines clause did not apply to civil in rem forfeiture proceedings

Orders of Protection

People v. Dean Hanniford, 174 A.D.3d 921, 2019 NY Slip Op 05998 (2nd Dept. 7/31/19).

The trial court had no authority to issue orders of protection in favor of three complainants who were the owners of certain property that served as the basis for three counts of an indictment that served as the basis for three counts of an indictment that were dismissed in satisfaction of the defendant’s plea of guilty to the unrelated count of fifth degree criminal possession. See C.P.L. 530.13(4). As such, the court vacated these orders of protection and in so ruling, noted that it was

114 reaching the issue notwithstanding the entry of the guilty plea and a valid waiver of appeal.

Probation

People v. Brian Hakes, 32 N.Y.3d 1050 (12/13/18) [6/1;Feinman, J.], N.Y.L.J. 12/14/18 @ p. 24.

A majority of the Court held that a sentencing court may require a defendant, in this case convicted of felony driving while intoxicated, to wear and pay for a Secure Continuous Remote Alcohol Monitoring [“SCRAM”] bracelet that monitors alcohol intake under P.L. 65.10(4) as part of a split sentence of six months incarceration and five years probation. In so ruling, the Court reversed an appellate division decision [143 A.D.3d 1054 (3rd Dept. 2016)] that held that sentencing courts cannot require a defendant to pay the costs of such monitoring and in so doing, ruled that such a condition was consistent with the trial judge’s statutory authority, but cautioned that defendants who cannot pay such costs, cannot be required to do so under penalty of incarceration on a violation of probation. In so holding, however, the Court remitted the case to the trial court for a determination regarding the wilfulness of the defendant’s violation of probation and his ability to pay. Judge Rivera dissented on her conclusion that P.L. 65.10 does not authorize a requirement of payment for such device.

People v. Terrence Murdock, __ A.D.3d __, 2019 NY Slip Op 06801 (2nd Dept. 9/28/19), N.Y.L.J. 9/27/19 @ p. 23.

While the trial court had a right to enhance the defendant’s sentence due to his violation of Outley warnings [see 80 N.Y.2d 702, 712]and specifically based on his failure to begin attending substance abuse treatment following his conviction for driving while intoxicated as a felony, a state sentence of a definite sentence of one year as requested by the People was deemed excessive and modified in the interest of justice to 90 days with credit for time served. In so ruling the appellate division noted that the enhancement under Outley does not require a formal hearing but merely an inquiry, as was provided here, as to the sufficiency of the claim plea breach.

Probation Violations

115 People v. Thomas Picciochi, __ A.D.3d __, 2019 N.Y. App. Div. 6822, 2019 NY Slip Op 6802 (2nd Dept. 9/25/19).

The defendant was charged with sexual abuse crimes pertaining to three alleged victims. The defendant then pleaded guilty to one count of first degree sexual abuse pertaining to the victim “TN” and sentenced to a split sentence, including probation. Thereafter, the defendant was charged with a violation of probation based on allegations that he failed to accept responsibility for alleged acts against another individual, “KR.” The conditions of probation required the defendant to “take responsibility for the acts for which he had been convicted and for any acts that aha[d] been incorporated into a plea agreement that did not result in conviction.” Following a hearing, the defendant was found in violation of his probation by refusing to take responsibility in sex offender treatment for alleged acts against “KR” and after revoking probation imposed a period of imprisonment for the original sexual abuse conviction. The appellate division reversed and held that any conduct as to “KR” was not an act [ ] for which [the defendant had been] convicted” or an act that was “incorporated into a plea agreement.”

People v. Daniel Brooks, 171 A.D.3d 778, 2019 NY Slip Op 02539 (2nd Dept. 4/3/19).

A probationer’s statement to a probation officer following an argument regarding whether he could bring his child to a probation meeting, that he would “blow [her] the f... up,” was held to be an insufficient basis for the court to adjudicate him in violation of probation and to impose a jail sentence for his weapons possession conviction on the holding that pursuant to C.P.L. 410.10(2), the defendant did not commit an “additional offense” by this conduct sufficient to revoke his probation. As the appellate division noted in reversing, there was insufficient proof that aside from the defendant’s “angry outburst,” the defendant committed the crime of obstructing governmental administration to the extent that the lower court determination that the defendant failed to lead a law-abiding life was “not supported by a preponderance of the evidence.”

Sex Offenders

People v. Arthur W. Ellis, Jr., __ N.Y.3d __, 2019 NY Slip Op 05183 (6/27/18; 7/0; Fahey, J.], N.Y.L.J. 6/28/19 @ pp. 1 & 22.

116 The Court of Appeals held that while Correction Law 168-f (4) requires a convicted level three defendant register “internet identifiers” with the Division of Criminal Justice Services [DCJS], which are defined as “electronic mail addresses and designations used for the purposes of chat, instant messaging, social networking or other similar internet communication,” this did not require the disclose the fact that he had an account with Facebook and register it with the DCJS on an annual “Verification Form.”. Thus, an indictment that charged an Essex County defendant with failing to register on the theory that he failed to register in violation of Correction Law 168-f (4) was held properly dismissed on jurisdiction grounds by the third department as the appellate division properly concluded: Facebook is not an “internet identifying” and the existence of a Facebook account, as opposed to the internet identifiers a sex offender may use to access Facebook or interact with users on Facebook {i.e., addresses that were disclosed], need not be disclosed.

Youthful Offenders

People v. Sheldon O., __ A.D.3d __, 2019 NY Slip Op 01430 (2nd Dept. 2/27/19).

The lower court improvidently exercised its discretion in denying the defendant’s application be adjudicated a youthful offender following his guilty plea to first degree robbery in a case in which the defendant, only 18 years old at the time of the crime, suffered from developmental disabilities, spent two years in pre-trial confinement, and played a “relatively minor role” in the robbery that was orchestrated by his older brother.

Appeals

People v. Rayheame Hill, __ N.Y.3d __, 2019 NY Slip Op 05187 (6/27/19) [6/1; Memorandum], N.Y.L.J. 6/28/19 @ p. 26.

A majority of the Court affirmed lower court orders that held that the denial of suppression was properly denied and that contrary to the dissent, the appellate division did not violate the appellate rule regarding reaching issues that were not decided adversely to the appellant by the trial court

117 under People v. LaFontaine, 92 N.Y.2d 470 (1998) or its progeny and C.P.L. 470.15. Judge Fahey dissented on his conclusion that the appellate division affirmed the denial of suppression on a conclusion that the defendant lacked standing but that issue was never reached by the trial court, which denied suppression on the ground that the claimed illegal search of the defendant’s belongings did not impermissibly taint the subsequent searches of a vehicle and an apartment where the defendant resided.

People v. Jakim Grimes, __ N.Y.3d __, 2018 NY Slip Op 07038 (10/23/18) [5/2; DiFiore, C.J.], N.Y.L.J. 10/24/18 @ pp.2 & 22.

A majority of the Court held that an attorney’s failure to timely file n application for leave to appeal to the Court of Appeals does not deprive a defendant of his constitutional right to effective assistance of counsel under the Sixth Amendment and New York State Constitution, Art. I. Sec. 6. Thus, where defense counsel failed to timely file the request for leave to appeal through law office failure (defense counsel advised the client that he would file one but never did) .on thereafter, he could not thereafter resort to coram nobis relief in the appellate division in cases as here, involving discretionary appeals, to abrogate the one-year grace period as a remedy for late filing provided in C.P.L. 460.30. Thus, the appellate division order denying this application was affirmed. Judge Wilson, joined by Judge Rivera, dissented on the conclusion that the majority’s “sleight of hand” has “veered sharply off course” by “boarding the wrong boat” and creating “bogeymen” to deprive the defendant of his valued right to effective assistance under the state constitution.

People v. Steven Baisley, __ N.Y.3d __, 2018 NY Slip Op 07039 (10/23/18) [7/0; Memorandum], N.Y.L.J. 10/24/18 @ p. 27.

The defendant’s challenge to the authority of the Justice court over criminal charges arising out of his non-compliance with a child support order was held not properly before the Court of Appeals. Thus, in affirming an Appellate Term order, the Court held that contrary to the parties’ mistaken representation below, the underlying support order was not issued by the Family Court, but instead, by the Supreme Court, which has constitutional authority over such matters and that as such, there was no reason for the Court to opine whether under the Family Court Act, the Family Court has exclusive and continuing jurisdiction over any criminal charges based on violations of its own support order.

118 In re New York State Office of Mental Health v. Marco G., __ A.D.3d __, 2018 NY Slip Op 06998 (1st Dept. 10/18/18).

The court, per Gesmer. J., held that where a criminal defendant has been found not responsible by reason of mental disease or defect, the court must hold an initial hearing and then successive hearings to determine if the defendant has a mental disorder or is mentally ill and that where a court’s retention order affect a “basic liberty interest” and thus involve a “substantial right, the defendant may appeal under CPLR 5701 (a)(2)(v), notwithstanding any explicit authority in CPL 330.20. In so ruling, the court rejected the State’s claim that the defendant’s appeal should be dismissed as moot where he and his counsel conceded his mental illness and therefore waived his right to seek review on those issues and adopted an analogous ruling in People v. Charles, 162 A.D.3d 125 (2nd Dept. 2018), which held that notwithstanding a specific right to appeal a denial of a downward modification of a sex offender risk assessment under Correction Law 168-o(2), there was a right to contest an issue involving a substantial liberty interest.

Judicial Recusal

People v. Clete Birkett, __ A.D.3d __, 2018 NY Slip Op 08072 (1st Dept. 11/27/18).

The defendant did not have a right to be present at a colloquy on his counsel’s motion for recusal of the trial court, which involved the court’s alleged involvement with the defendant during the judge’s former employment as a prosecutor in Manhattan, and which was conducted in camera for valid security reasons regarding the identity of an informant. Moreover, the trial judge properly exercised its discretion in denying the motion for recusal in a case in which the court informed the parties that, 24 years earlier, while a prosecutor, he had some knowledge of the defendant by way of an informant, and that defendant had a case that was being prosecuted by a then-colleague in the district attorney’s office. Thus, where the court’s prior knowledge of, or involvement with, the defendant was “minimal at best,” where there was no indication of judicial bias or showing that the denial of the recusal motion deprived the defendant of a fair trial, the defendant’s burglary and robbery conviction was affirmed.

Sex Offender Registration Act

People v. Frederick Diaz, __ N.Y.3d __, 2018 NY Slip Op 08424 (12/11/18) [4/3; Feinman, J.], N.Y.L.J. 12/12/18 @ p. 25.

119 The defendant’s Virginia conviction for the murder of his half-sister, which required registration as a sex offender under Virginia’s Sex Offender and Crimes Against Minors Registry Act [Va Code Ann 9.1-902], did not render him a sex offender for purposed of required registration under New York’s Sex Offender Registration Act (Correction Law 168, et seq.],

Motions to Vacate Judgments of Conviction

People v. Boris Brown, __ N.Y.3d __, 2019 N.Y. Lexis 1256 (5/2/19) [6/1; Memorandum].

While affirming the defendant’s depraved indifference murder and weapons possession conviction, arising out of his and his co-defendant’s wounding of one person and killing of another in a Manhattan housing development, a majority of the Court of Appeals held that the trial court erroneously denied the defendant’s C.P.L. 440.10 motion to vacate that conviction based on a claim that his attorney was conflicted due to his concurrent representation of a person, Ahmed Salaam, who was present at the time of the shooting and who had been arrested on unrelated charges. Thus, where the trial court, pre-trial, appointed conflict counsel to advise the defendant and thereafter conducted an inquiry pursuant to People v. Gomberg, 38 N.Y.2d 307 (1975) during which time the People and the co-defendant indicated they were not planning to call Salaam as a witness and the defendant waived any “conflict” a factual issue was indeed presented warranting a hearing. Judge Stein dissented in part on her conclusion that there was no factual issue presented on the conflict claim (indeed, they evidently agreed that there was none) and would have affirmed entirely.

People v. Andrew Krivak, 168 A.D.3d 979, 2019 NY Slip Op 00464 (2nd Dept. 1/23/19.

The appellate division reversed a lower court order that summarily denied the defendant’s motion to vacate his judgment of conviction for the murder of a 12 year old boy on the conclusion that where the co-defendant, Anthony DiPippo, had his case twice reversed by the Court of Appeals, the latter on grounds of erroneously excluded third party culpability evidence that one Howard Gombert was the killer [see People v. DiPippo, 27 N.Y.3d 127 (2016)] and thereafter was acquitted in a third trial on the murder, the defendant was entitled to a hearing to “promote

120 justice” and thereby review his claims regarding Gombert’s culpability as the actual killer.

People v. Omnipotent Unique Drayton, __ A.D.3d __, 08323 (2nd Dept. 12/5/18).

The lower court properly denied the defendant’s C.P.L. 440.10 motion to vacate his conviction for transferred intent intentional murder and depraved indifference murder based on a single homicide on the conclusion that while People v. Dubarry, 25 N.Y.3d 161 (2016) held that such charges should be submitted to the jury in the alternative rather than in the conjunctive, the rule of law in Dubarry should not be applied retroactively since prior caselaw in the first, second and fourth departments, post-People v. Gallagher, 69 N.Y.2d 525 (1987) permitted such convictions that that as new precedent under the factors outlined in People v. Pepper, 53 N.Y.2d 213 (1981), retroactive application in a collateral attack was not warranted.

People v. Reginald Fraser, __ A.D.3d __, 2018 NY Slip Op 06558 (2nd Dept. 10/3/18).

The trial court properly denied the defendant’s motion to vacate his judgment of conviction based on a claim of newly discovered evidence presented after a trial on three counts each of narcotics sale and possession following a hearing on the holding that under C.P.L. 440.10(10(g), the defendant failed to present sufficient cumulative evidence that had the evidence been received at the trial, by a preponderance of proof, the result would have been more favorable to the defendant. In so holding the appellate division held that the claimed newly discovered evidence (i.e., that the confidential informant pressured the defendant to sell the cocaine that was the basis of the charges on which he was convicted) was actually known to the defendant at the time of the trial and that the informant’s testimony, which was “vague” offered at the hearing was “unreliable.” Finally, the court also rejected the defendant’s claim of actual innocence on the conclusion that the defendant failed to carry his burden on this claim by clear and convincing proof.

Civil Confinement

Matter of State of New York v. Timothy R., __ A.D.3d __, 2018 NY Slip Op 08940 (2nd Dept. 12/26/18).

121 A majority of the second department held 4-1 that he trial court’s response to a deliberating jury note in the defendant’s civil confinement trial failed to comport with the statutory requirement that the People prove by clear and convincing evidence that the defendant suffered from a “mental abnormality,” under Mental Hygiene Law 10.03 and 10.07. Thus, where a deliberating jury in a Sex Offender Management and Treatment Act [SOMTA] trial under Mental Hygiene Law 10.06 sent a note to the court, “Do we have to agree with one of the expert’s diagnoses to find that he has a mental abnormality?” in a case in which three experts testified, two from the state, and the trial judge, and after hearing from both attorneys and over the objection of the defense, the judge answered in the negative and without so advising the attorneys, simply re-read a portion of the original instruction that advised that the jury could accept or reject any portion or all of an expert’s testimony, without objection, this was held reversible in the interest of justice because the instruction failed to convey the principle that the jury must conclude that one or more of the state’s experts established collectively or individually and clearly and convincingly that the defendant has an acquired or congenital condition, disease or disorder that predisposes him to commit sex offenses.

Sealing Records

In the Matter of James Q., __ N.Y.3d __, 2019 NY Slip Op 01166 (2/19/19) [2/19/19) [7/0; DiFiore, C.J.].

The confidentiality provisions of Mental Hygiene Law 33.13 requires the automatic sealing of the entire court records of all proceedings involving insanity acquittees who have dangerous mental disorders within the meaning of C.P.L. 330.20. Thus in a Suffolk case in which the defendant entered a plea of not responsible by reason of a mental disease or defect arising out of a violent assault of a 16 year old victim by the defendant and thereafter was found to have a dangerous mental disorder and was committed for a period of six months, the defendant’s motion to seal the entire court file on the commissioner’s application for re-commitment should have been granted by the court under Mental Hygiene Law 33.13, which is contrary to ordinary criminal case records. Thus, the Legislative determination under this statute as was held by the appellate division, to temper or abrogate the presumption of openness was given effect.

Civil Rights - Qualified Immunity

122 Andrew Kisela v. Amy Hughes, __ U.S. __, 138 S.Ct. 1138 (4/2/18) [7/2; Per Curiam].

A majority of the Court by a 7-2 vote reversed a Ninth Circuit Court of Appeals ruling that held in the context of a civil rights lawsuit brought under 42 U.S.C. 1983, that a Tucson, Arizona police officer was not entitled to qualified immunity in a case arising out of a non-life threatening shooting by the police who were responding to a 911 radio call of a woman engaging in “erratic” behavior with a knife and who refused to drop it on police command. In so ruling, the majority held that the reasonableness of a particular use of force by the police “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” [quoting, Graham v. Connor, 490 U.S. 386, 396 (1989)], and that as such, and on these facts the officer was entitled to qualified immunity where the officer’s conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” quoting, White v. Pauly, 580 U.S. __, __ (2017). Justice Sotomayor, joined by Justice Ginsburg, dissented on the conclusion that the officer was not entitled to qualified immunity because on a summary judgment application, the motion court could determine that a jury could find that the officer violated the plaintiff’s clearly established Fourth Amendment rights by needlessly resorting to lethal force.

Freedom of Information

Matter of New York City Civil Liberties Union v. New York City Police Department, __ N.Y.3d __, 2018 NY Slip Op 08423 (12/11/18) [5/2; Garcia, J.], N.Y.L.J. 12/12/18 @ pp. 1 & 23.

A majority of the Court held 5-2 that a 2011 Freedom of Information Law {FOIL] application presented by the New York City Civil Liberties Union [NYCLU] that sought disclosure of copies from the New York City Police Department [NYPD] of all final opinions from disciplinary trials 2001 ro present from departmental trials adjudicating charges and specifications arising out of substantiated New York City Civilian Complaint Board cases, along with documents that identify the discipline imposed by the department was properly denied by the trial court on the holding that these materials were exempted by Public Officers Law 87(2)(a) and Civil Rights Law 50-a, in that confidentiality of these materials as “quintessential ‘personnel records,’” was required by these statutes. In so ruling, the majority noted the policy considerations underlying Civil Rights Law 50- a, which seeks to prevent abusive exploitation of potentially damaging information in these files and noted that any removal of this restriction is properly addressed tot he Legislature. Judge Rivera dissented on her conclusion that a blanket exemption for production under FOIL has never been contained the Court’s prior precedents and thus, production with redaction should have been required. Judge Wilson also dissented on his conclusion that in view of the strong public policy of governmental transparency, and the fact that departmental disciplinary trials are already open to

123 the public, there is no legally cognizable ground to exempt the materials generated therefrom from disclosure. See also, In re Justine Luongo v. Records Access Appeals Officer, __ A.D.3d __, 2019 NY Slip Op 00344 (1st Dept. 1/17/19), N.Y.L.J. 1/22/19 @ p. 1, in which the first department, relying on Civil Liberties Union, affirmed a denial of a FOIL application for the production of “information used to evaluate officers’ performance, such as the disposition of disciplinary charges brought against them,” on grounds that as material “ripe for “degrading, embarrassing, harassing or intimidating” police officers [quoting Civil Liberties Union 2018 NY Slip Op at page 9], it was exempt from disclosure.

Double Jeopardy

Broderick William Seay v. Cannon, __ U.S. __ (8/19/19).

The Court stayed the effectiveness of a fourth circuit order and decision, reported at 927 F.3d 776 (4th Cir. 6/21/19), that held that since there was no manifest necessity to grant a mistrial after a State prosecutor in South Carolina was unable to produce a critical government witness in a timely fashion and as such double jeopardy precluded the defendant’s re-trial when the witness was subsequently located.

Terrence Martez Gamble v. United States, __ U.S. __, 139 S.Ct. 1960 (6/17/19) [7/2; Alito, J.], N.Y.L.J. 6/18/19 @ p. 1.

A majority of the Court, per Alito, J., declined to upset the long-standing dual sovereignty doctrine and thus affirmed a defendant’s federal conviction for weapons possession that followed his Alabama state conviction for bribing a felon-in-possession-of-a firearm-statute on the holding that that dual sovreignty doctrine recognizes that the two convictions are not in violation of the Double Jeopardy clause of the Fifth Amendment since they are prosecuted by different sovereigns and involve different statutes with different elements. The case is discussed in M. Coyle, “Justices Rule States and Feds Can Prosecute For the ‘Same Crime,’” N,Y.L.J. 6/18/19 @ p. 1

New Criminal Legislation

See B. Kamins, “Bail, Discovery and Speedy Trial,: The New Legislation,” N.Y.L.J. 6/3/19 @ p. .

124 See, B. Kamins, “New Criminal Justice Legislation,” Parts 1 and 2, N.Y.L.J. 10/1/18 @ p. 3 and 10/12/18 @ p. 3.

New Criminal Procedure Statutes - 2019

I. BAIL

DESK APPEARANCE TICKETS

Section 1. Section 150.10 of the criminal procedure law is amended by adding a new subdivision 3 to read as follows:

3. Before issuing an appearance ticket a police officer or other public servant must inform the arrestee that they may provide their contact information for the purposes of receiving a court notification to remind them of their court appearance date from the court or a certified pretrial services agency. Such contact information may include one or more phone numbers, a residential address or address at which the arrestee receives mail, or an email address. The contact information shall be recorded and be transmitted to the local criminal court as required by section 150.80 of this article.

§ 1-a. Subdivision 1 of section 150.20 of the criminal procedure law, as amended by chapter 550 of the laws of 1987, is amended to read as follows:

1. (a) Whenever a police officer is authorized pursuant to section 140.10 of this title to arrest a person without a warrant for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, he may shall, except as set out in paragraph (b) of this subdivision, subject to the provisions of subdivisions three and four of section 150.40 of this title, instead issue to and serve upon such person an appearance ticket.

(b) An officer is not required to issue an appearance ticket if:

(i) the person has one or more outstanding local criminal court or superior court warrants;

(ii) the person has failed to appear in court proceedings in the last two years;

(iii) the person has been given a reasonable opportunity to make their verifiable identity and a method of contact known, and has been unable or unwilling to do so, so that a custodial arrest is necessary to subject the individual to the jurisdiction of the court. For the purposes of this section,

125 an officer may rely on various factors to determine a person's identity, including but not limited to personal knowledge of such person, such person's self-identification, or photographic identification. There is no requirement that a person present --C photographic identification in order to be issued an appearance ticket in lieu of arrest where the person's identity is otherwise verifiable; however, if offered by such person, an officer shall accept as evidence of identity the following: a valid driver's license or non-driver identification card issued by the commissioner of motor vehicles, the federal government, any United States territory, commonwealth or possession, the District of Columbia, a state government or municipal government within the United States or a provincial government of the dominion of Canada; a valid passport issued by the United States government or any other country; an identification card issued by the armed forces of the United States; a public benefit card, as defined in paragraph (a) of subdivision one of section 158.00 of the penal law;

(iv) the person is charged with a crime between members of the same family or household, as defined in subdivision one of section 530.11 of this chapter;

(v) the person is charged with a crime defined in article 130 of the penal law;

(vi) it reasonably appears the person should be brought before the court for consideration of issuance of an order of protection, pursuant to section 530.13 of this chapter, based on the facts of the crime or offense that the officer has reasonable cause to believe occurred;

(vii) the person is charged with a crime for which the court may suspend or revoke his or her driver license;

(viii) it reasonably appears to the officer, based on the observed behavior of the individual in the present contact with the officer and facts regarding the person's condition that indicates a sign of distress to such a degree that the person would face harm without immediate medical or mental health care, that bringing the person before the court would be in such person's interest in addressing that need; provided, however, that before making the arrest, the officer shall make all reasonable efforts to assist the person in securing appropriate services.

§ 1-b. Section 150.30 of the criminal procedure law is REPEALED.

§ 1-c. Subdivision 1 of section 150.40 of the criminal procedure law is amended to read as follows:

1. An appearance ticket must be made returnable at a date as soon as possible, but in no event later than twenty days from the date of issuance, or at a later date, with the court's permission due to enrollment in a pre-arraignment diversion program. The appearance ticket shall be made returnable in a local criminal court designated in section 100.55 of this title as one with which an

126 information for the offense in question may be filed.

§ 1-d. The criminal procedure law is amended by adding a new section 150.80 to read as follows:

§ 150.80 Court appearance reminders.

1. A police officer or other public servant who has issued and served an appearance ticket must, within twenty-four hours of issuance, file or cause to be filed with the local criminal court the appearance ticket and any contact information made available pursuant to subdivision three of section 150.10 of this article.

2. Upon receipt of the appearance ticket and any contact information made available pursuant to subdivision three of section 150.10 of this article, the local criminal court shall issue a court appearance reminder and notify the arrestee of their court appearances by text message, telephone call, electronic mail, or first class mail. The local criminal court may partner with a certified pretrial services agency or agencies --C in that county to provide such notification and shall include a copy of the appearance ticket.

3. A local criminal court is not required to issue a court appearance reminder if the appearance ticket requires the arrestee's appearance within seventy-two hours of its issuance, or no contact information has been provided. BAIL AMENDMENTS

§ 1-e. Subdivisions 1, 2, 4, 5, 6, 7 and 9 of section 500.10 of the criminal procedure law are amended and a new subdivision 3-a is added to read as follows:

1. "Principal" means a defendant in a criminal action or proceeding, or a person adjudged a material witness therein, or any other person so involved therein that he the principal may by law be compelled to appear before a court for the purpose of having such court exercise control over his the principal's person to secure his the principal's future attendance at the action or proceeding when required, and who in fact either is before the court for such purpose or has been before it and been subjected to such control.

2. "Release on own recognizance." A court releases a principal on his the principal's own recognizance when, having acquired control over his the principal's person, it permits him the principal to be at liberty during the pendency of the criminal action or proceeding involved upon condition that he the principal will appear thereat whenever his the principal's attendance may be required and will at all times render himself the principal amenable to the orders and processes of the court.

3-a. "Release under non-monetary conditions." A court releases a principal under non-monetary conditions when, having acquired control over a person, it authorizes the person to be at liberty

127 during the pendency of the criminal action or proceeding involved under conditions ordered by the court, which shall be the least restrictive conditions that will reasonably assure the principal's return to court. Such conditions may include, among other conditions reasonable under the circumstances: that the principal be in contact with a pretrial services agency serving principals in that county; that the principal abide by reasonable, specified restrictions on travel that are reasonably related to an actual risk of flight from the jurisdiction; that the principal refrain from possessing a firearm, destructive device or other dangerous weapon; that, when it is shown pursuant to subdivision four of section 510.45 of this title that no other realistic monetary condition or set of non-monetary conditions will suffice to reasonably assure the person's return to court, the person be placed in reasonable pretrial supervision with a pretrial services agency serving principals in that county; that, when it is shown pursuant to paragraph (a) of subdivision four of section 510.40 of this title that no other realistic non-monetary condition or set of non-monetary conditions will suffice to reasonably assure the principal's return to court, the principal's location be monitored with an approved electronic monitoring device, in accordance with such subdivision four of section 510.40 of this title. A principal shall not be required to pay for any part of the cost of release on non-monetary conditions.

4. "Commit to the custody of the sheriff." A court commits a principal to the custody of the sheriff when, having acquired control over his the principal's person, it orders that he the principal be confined in the custody of the sheriff during the pendency of the criminal action or proceeding involved. --C

5. "Securing order" means an order of a court committing a principal to the custody of the sheriff, or fixing bail, where authorized, or releasing him on his the principal on the principal's own recognizance or releasing the principal under non-monetary conditions.

6. "Order of recognizance or bail" means a securing order releasing a principal on his the principal's own recognizance or under non-monetary conditions or, where authorized, fixing bail.

7. "Application for recognizance or bail" means an application by a principal that the court, instead of committing him the principal to or retaining him the principal in the custody of the sheriff, either release him on his own the principal on the principal's own recognizance or, release under non-monetary conditions, or, where authorized, fix bail.

9. "Bail" means cash bail or, a bail bond or money paid with a credit card.

§ 1-f. Section 500.10 of the criminal procedure law is amended by adding two new subdivisions 21 and 22 to read as follows:

21. "Qualifies for electronic monitoring," for purposes of subdivision four of section 510.40 of this title, means a person charged with a felony, a misdemeanor crime of domestic violence, a

128 misdemeanor defined in article one hundred thirty of the penal law, a crime and the circumstances of paragraph (b) of subdivision two of section 530.60 of this title apply, or any misdemeanor where the defendant stands previously convicted, within the past five years, of a violent felony offense as defined in section 70.02 of the penal law. For the purposes of this subdivision, in calculating such five year period, any period of time during which the defendant was incarcerated for any reason between the time of the commission of any such previous crime and the time of commission of the present crime shall be excluded and such five year period shall be extended by a period or periods equal to the time served under such incarceration.

22. "Misdemeanor crime of domestic violence," for purposes of subdivision twenty-one of this section, means a misdemeanor under the penal law provisions and circumstances described in subdivision one of section 530.11 of this title.

§ 2. Section 510.10 of the criminal procedure law, as amended by chapter 459 of the laws of 1984, is amended to read as follows:

§ 510.10 Securing order; when required; alternatives available; standard to be applied. 1. When a principal, whose future court attendance at a criminal action or proceeding is or may be required, initially comes under the control of a court, such court must shall, in accordance with this title, by a securing order, either release him the principal on his the principal's own recognizance, release the principal under non-monetary conditions, or, where authorized, fix bail or commit him the principal to the custody of the sheriff. In all such cases, except where another type of securing order is shown to be required by law, the court shall release the principal pending trial on the principal's own recognizance, unless it is demonstrated and the court makes an individualized determination that the principal poses a risk of flight to avoid prosecution. If such a finding is made, the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court. The court shall explain its choice of release, release with conditions, bail or remand on the record or in writing. --C

2. A principal is entitled to representation by counsel under this chapter in preparing an application for release, when a securing order is being considered and when a securing order is being reviewed for modification, revocation or termination. If the principal is financially unable to obtain counsel, counsel shall be assigned to the principal.

3. In cases other than as described in subdivision four of this section the court shall release the principal pending trial on the principal's own recognizance, unless the court finds on the record or in writing that release on the principal's own recognizance will not reasonably assure the principal's return to court. In such instances, the court shall release the principal under non-monetary conditions, selecting the least restrictive alternative and conditions that will reasonably assure the principal's return to court. The court shall explain its choice of alternative and conditions on the record or in writing.

129 4. Where the principal stands charged with a qualifying offense, the court, unless otherwise prohibited by law, may in its discretion release the principal pending trial on the principal's own recognizance or under non-monetary conditions, fix bail, or, where the defendant is charged with a qualifying offense which is a felony, the court may commit the principal to the custody of the sheriff. A principal stands charged with a qualifying offense for the purposes of this subdivision when he or she stands charged with:

(a) a felony enumerated in section 70.02 of the penal law, other than burglary in the second degree as defined in subdivision two of section 140.25 of the penal law or robbery in the second degree as defined in subdivision one of section 160.10 of the penal law;

(b) a crime involving witness intimidation under section 215.15 of the penal law;

(c) a crime involving witness tampering under section 215.11, 215.12 or 215.13 of the penal law;

(d) a class A felony defined in the penal law, other than in article two hundred twenty of such law with the exception of section 220.77 of such law;

(e) a felony sex offense defined in section 70.80 of the penal law or a crime involving incest as defined in section 255.25, 255.26 or 255.27 of such law, or a misdemeanor defined in article one hundred thirty of such law;

(f) conspiracy in the second degree as defined in section 105.15 of the penal law, where the underlying allegation of such charge is that the defendant conspired to commit a class A felony defined in article one hundred twenty-five of the penal law;

(g) money laundering in support of terrorism in the first degree as defined in section 470.24 of the penal law; money laundering in support of terrorism in the second degree as defined in section 470.23 of the penal law; or a felony crime of terrorism as defined in article four hundred ninety of the penal law, other than the crime defined in section 490.20 of such law;

(h) criminal contempt in the second degree as defined in subdivision three of section 215.50 of the penal law, criminal contempt in the first degree as defined in subdivision (b), (c) or (d) of section 215.51 of the penal law or aggravated criminal contempt as defined in section 215.52 of the penal law, and the underlying allegation of such charge of criminal contempt in the second degree, criminal contempt in the first degree or aggravated criminal contempt is that the defendant violated a duly served order of protection where the protected party is a member of --C the defendant's same family or household as defined in subdivision one of section 530.11 of this article; or

(i) facilitating a sexual performance by a child with a controlled substance or alcohol as defined in section 263.30 of the penal law, use of a child in a sexual performance as defined in section

130 263.05 of the penal law or luring a child as defined in subdivision one of section 120.70 of the penal law.

5. Notwithstanding the provisions of subdivisions three and four of this section, with respect to any charge for which bail or remand is not ordered, and for which the court would not or could not otherwise require bail or remand, a defendant may, at any time, request that the court set bail in a nominal amount requested by the defendant in the form specified in paragraph (a) of subdivision one of section 520.10 of this title; if the court is satisfied that the request is voluntary, the court shall set such bail in such amount.

6. When a securing order is revoked or otherwise terminated in the course of an uncompleted action or proceeding but the principal's future court attendance still is or may be required and he the principal is still under the control of a court, a new securing order must be issued. When the court revokes or otherwise terminates a securing order which committed the principal to the custody of the sheriff, the court shall give written notification to the sheriff of such revocation or termination of the securing order.

§ 3. Section 510.20 of the criminal procedure law is amended to read as follows:

§ 510.20 Application for recognizance or bail; making and determi- nation thereof in general a change in securing order. 1. Upon any occasion when a court is required to issue has issued a securing order with respect to a principal, or at any time when a and the principal is confined in the custody of the sheriff as a result of the securing order or a previously issued securing order, he the principal may make an application for recognizance, release under non-monetary conditions or bail.

2. (a) The principal is entitled to representation by counsel in the making and presentation of such application. If the principal is financially unable to obtain counsel, counsel shall be assigned to the principal.

(b) Upon such application, the principal must be accorded an opportunity to be heard, present evidence and to contend that an order of recognizance, release under non-monetary conditions or, where authorized, bail must or should issue, that the court should release him on his the principal on the principal's own recognizance or under non-monetary conditions rather than fix bail, and that if bail is authorized and fixed it should be in a suggested amount and form.

§ 4. Intentionally omitted.

§ 5. Section 510.30 of the criminal procedure law, subparagraph (v) of paragraph (a) of subdivision 2 as amended by chapter 920 of the laws of 1982, subparagraph (vi) of paragraph (a) of subdivision 2 as renumbered by chapter 447 of the laws of 1977, subparagraph (vii) as added and subparagraphs (viii) and (ix) of paragraph (a) of subdivision 2 as renumbered by section 1 of

131 part D of chapter 491 of the laws of 2012, and subdivision 3 as added by chapter 788 of the laws of 1981, is amended to read as follows:

§ 510.30 Application for recognizance or bail securing order; rules of law and criteria controlling determination. --C 1. Determinations of applications for recognizance or bail are not in all cases discretionary but are subject to rules, prescribed in article five hundred thirty and other provisions of law relating to specific kinds of criminal actions and proceedings, providing (a) that in some circumstances such an application must as a matter of law be granted, (b) that in others it must as a matter of law be denied and the principal committed to or retained in the custody of the sheriff, and (c) that in others the granting or denial thereof is a matter of judicial discretion.

2. To the extent that the issuance of an order of recognizance or bail and the terms thereof are matters of discretion rather than of law, an application is determined on the basis of the following factors and criteria:

(a) With respect to any principal, the court in all cases, unless otherwise provided by law, must consider the impose the least restrictive kind and degree of control or restriction that is necessary to secure his court attendance the principal's return to court when required. In determining that matter, the court must, on the basis of available information, consider and take into account:

(i) The principal's character, reputation, habits and mental condition;

(ii) His employment and financial resources; and

(iii) His family ties and the length of his residence if any in the community; and

(iv) His information about the principal that is relevant to the principal's return to court, including:

(a) The principal's activities and history;

(b) If the principal is a defendant, the charges facing the principal;

(c) The principal's criminal conviction record if any; and

(v) His (d) The principal's record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.2 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any; and

(vi) His (e) The principal's previous record if any in responding to court appearances when required or with respect to flight to avoid criminal prosecution; and

(vii) (f) If monetary bail is authorized, according to the restrictions set forth in this title, the

132 principal's individual financial circumstances, and, in cases where bail is authorized, the principal's ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond;

(g) Where the principal is charged with a crime or crimes against a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, the following factors:

(A) (i) any violation by the principal of an order of protection issued by any court for the protection of a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, whether or not such order of protection is currently in effect; and

(B) (ii) the principal's history of use or possession of a firearm; and

(viii) (h) If he the principal is a defendant, the weight of the evidence against him in the pending criminal action and any other factor indicating probability or improbability of conviction; or, in the case --C of an application for bail or recognizance a securing order pending appeal, the merit or lack of merit of the appeal; and

(ix) If he is a defendant, the sentence which may be or has been imposed upon conviction.

(b) 2. Where the principal is a defendant-appellant in a pending appeal from a judgment of conviction, the court must also consider the likelihood of ultimate reversal of the judgment. A determination that the appeal is palpably without merit alone justifies, but does not require, a denial of the application, regardless of any determination made with respect to the factors specified in paragraph (a) subdivision one of this section.

3. When bail or recognizance is ordered, the court shall inform the principal, if he the principal is a defendant charged with the commission of a felony, that the release is conditional and that the court may revoke the order of release and may be authorized to commit the principal to the custody of the sheriff in accordance with the provisions of subdivision two of section 530.60 of this chapter if he the principal commits a subsequent felony while at liberty upon such order.

§ 6. Section 510.40 of the criminal procedure law is amended to read as follows: § 510.40 Application for recognizance or bail; determination thereof, form of securing order and execution thereof Court notifi- cation to principal of conditions of release and of alleged violations of conditions of release. 1. An application for recognizance or bail must be determined by a securing order which either:

(a) Grants the application and releases the principal on his own recognizance; or

133 (b) Grants the application and fixes bail; or

(c) Denies the application and commits the principal to, or retains him in, the custody of the sheriff.

2. Upon ordering that a principal be released on his the principal's own recognizance, or released under non-monetary conditions, or, if bail has been fixed, upon the posting of bail, the court must direct him the principal to appear in the criminal action or proceeding involved whenever his the principal's attendance may be required and to render himself be at all times amenable to the orders and processes of the court. If such principal is in the custody of the sheriff or at liberty upon bail at the time of the order, the court must direct that he the principal be discharged from such custody or, as the case may be, that his the principal's bail be exonerated.

3. 2. Upon the issuance of an order fixing bail, where authorized, and upon the posting thereof, the court must examine the bail to determine whether it complies with the order. If it does, the court must, in the absence of some factor or circumstance which in law requires or authorizes disapproval thereof, approve the bail and must issue a certificate of release, authorizing the principal to be at liberty, and, if he the principal is in the custody of the sheriff at the time, directing the sheriff to discharge him the principal therefrom. If the bail fixed is not posted, or is not approved after being posted, the court must order that the principal be committed to the custody of the sheriff. In the event of any such non-approval, the court shall explain promptly in writing the reasons therefor.

3. Non-monetary conditions of release shall be individualized and established in writing by the court. At future court appearances, the court shall consider a lessening of conditions or modification of conditions to a less burdensome form based on the principal's compliance with such conditions of release. In the event of alleged non-compliance with the conditions of release in an important respect, pursuant to this subdivision, additional conditions may be imposed by the court, on the record or in writing, only after notice of the facts and circumstances of such alleged non-compliance, reasonable under the circumstances, affording the principal and the principal's attorney and the people an opportunity to present relevant, admissible evidence, relevant witnesses and to cross-examine witnesses, and a finding by clear and convincing evidence that the principal violated a condition of release in an important respect. Following such a finding, in determining whether to impose additional conditions for non-compliance, the court shall consider and may select conditions consistent with the court's obligation to impose the least restrictive condition or conditions that will reasonably assure the defendant's return to court. The court shall explain on the record or in writing the reasons for its determination and for any changes to the conditions imposed.

4. (a) Electronic monitoring of a principal's location may be ordered only if the court finds, after notice, an opportunity to be heard and an individualized determination explained on the record or

134 in writing, that the defendant qualifies for electronic monitoring in accordance with subdivision twenty-one of section 500.10 of this title, and no other realistic non-monetary condition or set of non-monetary conditions will suffice to reasonably assure a principal's return to court.

(b) The specific method of electronic monitoring of the principal's location must be approved by the court. It must be the least restrictive procedure and method that will reasonably assure the principal's return to court, and unobtrusive to the greatest extent practicable.

(c) Electronic monitoring of the location of a principal may be conducted only by a public entity under the supervision and control of a county or municipality or a non-profit entity under contract to the county, municipality or the state. A county or municipality shall be authorized to enter into a contract with another county or municipality in the state to monitor principals under non-monetary conditions of release in its county, but counties, municipalities and the state shall not contract with any private for-profit entity for such purposes.

(d) Electronic monitoring of a principal's location may be for a maximum period of sixty days, and may be renewed for such period, after notice, an opportunity to be heard and a de novo, individualized determination in accordance with this subdivision, which shall be explained on the record or in writing.

A defendant subject to electronic location monitoring under this subdivision shall be considered held or confined in custody for purposes of section 180.80 of this chapter and shall be considered committed to the custody of the sheriff for purposes of section 170.70 of the chapter, as applicable.

5. If a principal is released under non-monetary conditions, the court shall, on the record and in an individualized written document provided to the principal, notify the principal, in plain language and a manner sufficiently clear and specific:

(a) of any conditions to which the principal is subject, to serve as a guide for the principal's conduct; and

(b) that the possible consequences for violation of such a condition may include revocation of the securing order and the ordering of a more restrictive securing order. --C

§ 7. The criminal procedure law is amended by adding a new section 510.43 to read as follows:

§ 510.43 Court appearances: additional notifications.

The court or, upon direction of the court, a certified pretrial services agency, shall notify all principals released under non-monetary conditions and on recognizance of all court appearances in advance by text message, telephone call, electronic mail or first class mail. The chief

135 administrator of the courts shall, pursuant to subdivision one of section 10.40 of this chapter, develop a form which shall be offered to the principal at court appearances. On such form, which upon completion shall be retained in the court file, the principal may select one such preferred manner of notice.

§ 8. The criminal procedure law is amended by adding a new section 510.45 to read as follows:

§ 510.45 Pretrial services agencies.

1. The office of court administration shall certify and regularly review for recertification one or more pretrial services agencies in each county to monitor principals released under non-monetary conditions. Such office shall maintain a listing on its public website identifying by county each pretrial services agency so certified in the state.

2. Every such agency shall be a public entity under the supervision and control of a county or municipality or a non-profit entity under contract to the county, municipality or the state. A county or municipality shall be authorized to enter into a contract with another county or municipality in the state to monitor principals under non-monetary conditions of release in its county, but counties, municipalities and the state shall not contract with any private for-profit entity for such purposes.

3. (a) Any questionnaire, instrument or tool used with a principal in the process of considering or determining the principal's possible release on recognizance, release under non-monetary conditions or on bail, or used with a principal in the process of considering or determining a condition or conditions of release or monitoring by a pretrial services agency, shall be promptly made available to the principal and the principal's counsel upon written request. Any such blank form questionnaire, instrument or tool regularly used in the county for such purpose or a related purpose shall be made available to any person promptly upon request.

(b) Any such questionnaire, instrument or tool used to inform determinations on release or conditions of release shall be:

(i) designed and implemented in a way that ensures the results are free from discrimination on the basis of race, national origin, sex, or any other protected class; and

(ii) empirically validated and regularly revalidated, with such validation and revalidation studies and all underlying data, except personal identifying information for any defendant, publicly available upon request.

4. Supervision by a pre-trial services agency may be ordered as a non-monetary condition pursuant to this title only if the court finds, after notice, an opportunity to be heard and an individualized determination explained on the record or in writing, that no other realistic non-monetary condition

136 or set of non-monetary conditions will suffice to reasonably assure the principal's return to court.

5. Each pretrial service agency certified by the office of court administration pursuant to this section shall at the end of each year prepare and file with such office an annual report, which the office shall compile, publish on its website and make available upon request to members of the public. Such reports shall not include any personal identifying information for any individual defendants. Each such report, in addition to other relevant information, shall set forth, disaggregated by each county served:

(a) the number of defendants supervised by the agency;

(b) the length of time (in months) each such person was supervised by the agency prior to acquittal, dismissal, release on recognizance, revocation of release on conditions, and sentencing;

(c) the race, ethnicity, age and sex of each person supervised;

(d) the crimes with which each person supervised was charged;

(e) the number of persons supervised for whom release conditions were modified by the court, describing generally for each person or group of persons the type and nature of the condition or conditions added or removed;

(f) the number of persons supervised for whom release under conditions was revoked by the court, and the basis for such revocations; and

(g) the court disposition in each supervised case, including sentencing information.

§ 9. Section 510.50 of the criminal procedure law is amended to read as follows:

§ 510.50 Enforcement of securing order.

1. When the attendance of a principal confined in the custody of the sheriff is required at the criminal action or proceeding at a particular time and place, the court may compel such attendance by directing the sheriff to produce him the principal at such time and place. If the principal is at liberty on his the principal's own recognizance or non-monetary conditions or on bail, his the principal's attendance may be achieved or compelled by various methods, including notification and the issuance of a bench warrant, prescribed by law in provisions governing such matters with respect to the particular kind of action or proceeding involved.

2. Except when the principal is charged with a new crime while at liberty, absent relevant, credible evidence demonstrating that a principal's failure to appear for a scheduled court

137 appearance was willful, the court, prior to issuing a bench warrant for a failure to appear for a scheduled court appearance, shall provide at least forty-eight hours notice to the principal or the principal's counsel that the principal is required to appear, in order to give the principal an opportunity to appear voluntarily.

§ 10. Paragraph (b) of subdivision 2 of section 520.10 of the criminal procedure law, as amended by chapter 784 of the laws of 1972, is amended to read as follows:

(b) The court may shall direct that the bail be posted in any one of two three or more of the forms specified in subdivision one of this section, designated in the alternative, and may designate different amounts varying with the forms;, except that one of the forms shall be either an unsecured or partially secured surety bond, as selected by the court.

§ 11. Section 530.10 of the criminal procedure law is amended to read as follows:

§ 530.10 Order of recognizance release under non-monetary conditions or bail; in general. Under circumstances prescribed in this article, a court, upon application of a defendant charged with or convicted of an offense, is required --C or authorized to order bail or recognizance to issue a securing order for the release or prospective release of such defendant during the pendency of either:

1. A criminal action based upon such charge; or

2. An appeal taken by the defendant from a judgment of conviction or a sentence or from an order of an intermediate appellate court affirming or modifying a judgment of conviction or a sentence.

§ 12. Subdivision 4 of section 530.11 of the criminal procedure law, as added by chapter 186 of the laws of 1997, is amended to read as follows:

4. When a person is arrested for an alleged family offense or an alleged violation of an order of protection or temporary order of protection or arrested pursuant to a warrant issued by the supreme or family court, and the supreme or family court, as applicable, is not in session, such person shall be brought before a local criminal court in the county of arrest or in the county in which such warrant is returnable pursuant to article one hundred twenty of this chapter. Such local criminal court may issue any order authorized under subdivision eleven of section 530.12 of this article, section one hundred fifty-four-d or one hundred fifty-five of the family court act or subdivision three-b of section two hundred forty or subdivision two-a of section two hundred fifty-two of the domestic relations law, in addition to discharging other arraignment responsibilities as set forth in this chapter. In making such order, the local criminal court shall consider de novo the bail recommendation and securing order, if any, made by the supreme or family court as indicated on the warrant or certificate of warrant. Unless the petitioner or complainant requests otherwise, the court, in addition to scheduling further criminal proceedings,

138 if any, regarding such alleged family offense or violation allegation, shall make such matter returnable in the supreme or family court, as applicable, on the next day such court is in session.

§ 13. Paragraph (a) of subdivision 8 of section 530.13 of the criminal procedure law, as added by chapter 388 of the laws of 1984, is amended to read as follows:

(a) revoke an order of recognizance, release under non-monetary conditions or bail and commit the defendant to custody; or

§ 14. The opening paragraph of subdivision 1 of section 530.13 of the criminal procedure law, as amended by chapter 137 of the laws of 2007, is amended to read as follows:

When any criminal action is pending, and the court has not issued a temporary order of protection pursuant to section 530.12 of this article, the court, in addition to the other powers conferred upon it by this chapter, may for good cause shown issue a temporary order of protection in conjunction with any securing order committing the defendant to the custody of the sheriff or as a condition of a pre-trial release, or as a condition of release on bail or an adjournment in contemplation of dismissal. In addition to any other conditions, such an order may require that the defendant:

§ 15. Subdivision 11 of section 530.12 of the criminal procedure law, as amended by chapter 498 of the laws of 1993, the opening paragraph as amended by chapter 597 of the laws of 1998, paragraph (a) as amended by chapter 222 of the laws of 1994, paragraph (d) as amended by chapter 644 of the laws of 1996, is amended to read as follows:

11. If a defendant is brought before the court for failure to obey any lawful order issued under this section, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, and if, after hearing, the court is satisfied by competent proof that the defendant has willfully failed to obey any such order, the court may:

(a) revoke an order of recognizance or release under non-monetary conditions or revoke an order of bail or order forfeiture of such bail and commit the defendant to custody; or

(b) restore the case to the calendar when there has been an adjournment in contemplation of dismissal and commit the defendant to custody; or

(c) revoke a conditional discharge in accordance with section 410.70 of this chapter and impose probation supervision or impose a sentence of imprisonment in accordance with the penal law based on the original conviction; or

(d) revoke probation in accordance with section 410.70 of this chapter and impose a sentence of imprisonment in accordance with the penal law based on the original conviction. In addition, if

139 the act which constitutes the violation of the order of protection or temporary order of protection is a crime or a violation the defendant may be charged with and tried for that crime or violation.

§ 16. Section 530.20 of the criminal procedure law, as amended by chapter 531 of the laws of 1975, subparagraph (ii) of paragraph (b) of subdivision 2 as amended by chapter 218 of the laws of 1979, is amended to read as follows:

§ 530.20 Order of recognizance or bail; Securing order by local crimi- nal court when action is pending therein. When a criminal action is pending in a local criminal court, such court, upon application of a defendant, must or may order recognizance or bail shall proceed as follows:

1. When the defendant is charged, by information, simplified information, prosecutor's information or misdemeanor complaint, with an offense or offenses of less than felony grade only, the court must order recognizance or bail. (a) In cases other than as described in paragraph (b) of this subdivision the court shall release the principal pending trial on the principal's own recognizance, unless the court finds on the record or in writing that release on the principal's own recognizance will not reasonably assure the principal's return to court. In such instances, the court shall release the principal under non-monetary conditions, selecting the least restrictive alternative and conditions that will reasonably assure the principal's return to court. The court shall explain its choice of alternative and conditions on the record or in writing.

(b) Where the principal stands charged with a qualifying offense, the court, unless otherwise prohibited by law, may in its discretion release the principal pending trial on the principal's own recognizance or under non-monetary conditions, fix bail, or, where the defendant is charged with a qualifying offense which is a felony, the court may commit the principal to the custody of the sheriff. The court shall explain its choice of release, release with conditions, bail or remand on the record or in writing. A principal stands charged with a qualifying offense when he or she stands charged with:

(i) a felony enumerated in section 70.02 of the penal law, other than burglary in the second degree as defined in subdivision two of section 140.25 of the penal law or robbery in the second degree as defined in subdivision one of section 160.10 of the penal law;

(ii) a crime involving witness intimidation under section 215.15 of the penal law; --C

(iii) a crime involving witness tampering under section 215.11, 215.12 or 215.13 of the penal law;

(iv) a class A felony defined in the penal law, other than in article two hundred twenty of such law with the exception of section 220.77 of such law;

(v) a felony sex offense defined in section 70.80 of the penal law or a crime involving incest as

140 defined in section 255.25, 255.26 or 255.27 of such law, or a misdemeanor defined in article one hundred thirty of such law;

(vi) conspiracy in the second degree as defined in section 105.15 of the penal law, where the underlying allegation of such charge is that the defendant conspired to commit a class A felony defined in article one hundred twenty-five of the penal law;

(vii) money laundering in support of terrorism in the first degree as defined in section 470.24 of the penal law; money laundering in support of terrorism in the second degree as defined in section 470.23 of the penal law; or a felony crime of terrorism as defined in article four hundred ninety of the penal law, other than the crime defined in section 490.20 of such law;

(viii) criminal contempt in the second degree as defined in subdivision three of section 215.50 of the penal law, criminal contempt in the first degree as defined in subdivision (b), (c) or (d) of section 215.51 of the penal law or aggravated criminal contempt as defined in section 215.52 of the penal law, and the underlying allegation of such charge of criminal contempt in the second degree, criminal contempt in the first degree or aggravated criminal contempt is that the defendant violated a duly served order of protection where the protected party is a member of the defendant's same family or household as defined in subdivision one of section 530.11 of this article; or

(ix) facilitating a sexual performance by a child with a controlled substance or alcohol as defined in section 263.30 of the penal law, use of a child in a sexual performance as defined in section 263.05 of the penal law or luring a child as defined in subdivision one of section 120.70 of the penal law.

(d) Notwithstanding the provisions of paragraphs (a) and (b) of this subdivision, with respect to any charge for which bail or remand is not ordered, and for which the court would not or could not otherwise require bail or remand, a defendant may, at any time, request that the court set bail in a nominal amount requested by the defendant in the form specified in paragraph (a) of subdivision one of section 520.10 of this title; if the court is satisfied that the request is voluntary, the court shall set such bail in such amount.

2. When the defendant is charged, by felony complaint, with a felony, the court may, in its discretion, order recognizance, release under non-monetary conditions, or, where authorized, bail or commit the defendant to the custody of the sheriff except as otherwise provided in subdivision one of this section or this subdivision:

(a) A city court, a town court or a village court may not order recognizance or bail when (i) the defendant is charged with a class A felony, or (ii) it appears that the defendant has two previous felony convictions;

(b) No local criminal court may order recognizance, release under non-monetary conditions or bail

141 with respect to a defendant charged with a felony unless and until:

(i) The district attorney has been heard in the matter or, after knowledge or notice of the application and reasonable opportunity to be --C heard, has failed to appear at the proceeding or has otherwise waived his right to do so; and

(ii) The court has and counsel for the defendant have been furnished with a report of the division of criminal justice services concerning the defendant's criminal record, if any, or with a police department report with respect to the defendant's prior arrest and conviction record, if any. If neither report is available, the court, with the consent of the district attorney, may dispense with this requirement; provided, however, that in an emergency, including but not limited to a substantial impairment in the ability of such division or police department to timely furnish such report, such consent shall not be required if, for reasons stated on the record, the court deems it unnecessary. When the court has been furnished with any such report or record, it shall furnish a copy thereof to counsel for the defendant or, if the defendant is not represented by counsel, to the defendant.

§ 17. The section heading and subdivisions 1 and 2 of section 530.30 of the criminal procedure law, subdivision 2 as amended by chapter 762 of the laws of 1971, are amended to read as follows: Order of recognizance, release under non-monetary conditions or bail; by superior court judge when action is pending in local crimi- nal court. 1. When a criminal action is pending in a local criminal court, other than one consisting of a superior court judge sitting as such, a judge of a superior court holding a term thereof in the county, upon application of a defendant, may order recognizance, release under non-monetary conditions or, where authorized, bail when such local criminal court:

(a) Lacks authority to issue such an order, pursuant to paragraph (a) of subdivision two the relevant provisions of section 530.20 of this article; or

(b) Has denied an application for recognizance, release under non-monetary conditions or bail; or

(c) Has fixed bail, where authorized, which is excessive; or

(d) Has set a securing order of release under non-monetary conditions which are more restrictive than necessary to reasonably assure the defendant's return to court.

In such case, such superior court judge may vacate the order of such local criminal court and release the defendant on his own recognizance or under non-monetary conditions, or where authorized, fix bail in a lesser amount or in a less burdensome form, whichever are the least restrictive alternative and conditions that will reasonably assure the defendant's return to court. The court shall explain its choice of alternative and conditions on the record or in writing.

142 2. Notwithstanding the provisions of subdivision one of this section, when the defendant is charged with a felony in a local criminal court, a superior court judge may not order recognizance, release under non-monetary conditions or, where authorized, bail unless and until the district attorney has had an opportunity to be heard in the matter and such judge has and counsel for the defendant have been furnished with a report as described in subparagraph (ii) of paragraph (b) of subdivision two of section 530.20 of this article.

§ 18. Section 530.40 of the criminal procedure law, subdivision 3 as amended by chapter 264 of the laws of 2003, and subdivision 4 as amended by chapter 762 of the laws of 1971, is amended to read as follows:

§ 530.40 Order of recognizance, release under non-monetary conditions or bail; by superior court when action is pending therein. When a criminal action is pending in a superior court, such court, upon application of a defendant, must or may order recognizance or bail as follows:

1. When the defendant is charged with an offense or offenses of less than felony grade only, the court must, unless otherwise provided by law, order recognizance or bail release under non-monetary conditions in accordance with this section.

2. When the defendant is charged with a felony, the court may, unless otherwise provided by law in its discretion, order recognizance or, release under non-monetary conditions or, where authorized, bail. In any such case in which an indictment (a) has resulted from an order of a local criminal court holding the defendant for the action of the grand jury, or (b) was filed at a time when a felony complaint charging the same conduct was pending in a local criminal court, and in which such local criminal court or a superior court judge has issued an order of recognizance or, release under non-monetary conditions or, where authorized, bail which is still effective, the superior court's order may be in the form of a direction continuing the effectiveness of the previous order.

3. In cases other than as described in subdivision four of this section the court shall release the principal pending trial on the principal's own recognizance, unless the court finds on the record or in writing that release on the principal's own recognizance will not reasonably assure the principal's return to court. In such instances, the court shall release the principal under non-monetary conditions, selecting the least restrictive alternative and conditions that will reasonably assure the principal's return to court. The court shall explain its choice of alternative and conditions on the record or in writing.

4. Where the principal stands charged with a qualifying offense, the court, unless otherwise prohibited by law, may in its discretion release the principal pending trial on the principal's own recognizance or under non-monetary conditions, fix bail, or, where the defendant is charged with a qualifying offense which is a felony, the court may commit the principal to the custody of the

143 sheriff. The court shall explain its choice of release, release with conditions, bail or remand on the record or in writing. A principal stands charged with a qualifying offense for the purposes of this subdivision when he or she stands charged with:

(a) a felony enumerated in section 70.02 of the penal law, other than burglary in the second degree as defined in subdivision two of section 140.25 of the penal law or robbery in the second degree as defined in subdivision one of section 160.10 of the penal law;

(b) a crime involving witness intimidation under section 215.15 of the penal law;

(c) a crime involving witness tampering under section 215.11, 215.12 or 215.13 of the penal law;

(d) a class A felony defined in the penal law, other than in article two hundred twenty of such law with the exception of section 220.77 of such law;

(e) a felony sex offense defined in section 70.80 of the penal law or a crime involving incest as defined in section 255.25, 255.26 or 255.27 of such law, or a misdemeanor defined in article one hundred thirty of such law;

(f) conspiracy in the second degree as defined in section 105.15 of the penal law, where the underlying allegation of such charge is that the defendant conspired to commit a class A felony defined in article one hundred twenty-five of the penal law;

(g) money laundering in support of terrorism in the first degree as defined in section 470.24 of the penal law; money laundering in support of terrorism in the second degree as defined in section 470.23 of the penal law; or a felony crime of terrorism as defined in article four hundred ninety of the penal law, other than the crime defined in section 490.20 of such law;

(h) criminal contempt in the second degree as defined in subdivision three of section 215.50 of the penal law, criminal contempt in the first degree as defined in subdivision (b), (c) or (d) of section 215.51 of the penal law or aggravated criminal contempt as defined in section 215.52 of the penal law, and the underlying allegation of such charge of criminal contempt in the second degree, criminal contempt in the first degree or aggravated criminal contempt is that the defendant violated a duly served order of protection where the protected party is a member of the defendant's same family or household as defined in subdivision one of section 530.11 of this article; or

(i) facilitating a sexual performance by a child with a controlled substance or alcohol as defined in section 263.30 of the penal law, use of a child in a sexual performance as defined in section 263.05 of the penal law or luring a child as defined in subdivision one of section 120.70 of the penal law.

144 5. Notwithstanding the provisions of subdivisions three and four of this section, with respect to any charge for which bail or remand is not ordered, and for which the court would not or could not otherwise require bail or remand, a defendant may, at any time, request that the court set bail in a nominal amount requested by the defendant in the form specified in paragraph (a) of subdivision one of section 520.10 of this title; if the court is satisfied that the request is voluntary, the court shall set such bail in such amount.

6. Notwithstanding the provisions of subdivision two subdivisions two, three and four of this section, a superior court may not order recognizance, release under non-monetary conditions or, where authorized, bail, or permit a defendant to remain at liberty pursuant to an existing order, after he the defendant has been convicted of either: (a) a class A felony or (b) any class B or class C felony as defined in article one hundred thirty of the penal law committed or attempted to be committed by a person eighteen years of age or older against a person less than eighteen years of age. In either case the court must commit or remand the defendant to the custody of the sheriff.

7. Notwithstanding the provisions of subdivision two subdivisions two, three and four of this section, a superior court may not order recognizance, release under non-monetary conditions or, where authorized, bail when the defendant is charged with a felony unless and until the district attorney has had an opportunity to be heard in the matter and such court has and counsel for the defendant have been furnished with a report as described in subparagraph (ii) of paragraph (b) of subdivision two of section 530.20 of this article.

§ 19. Subdivision 1 of section 530.45 of the criminal procedure law, as amended by chapter 264 of the laws of 2003, is amended to read as follows:

1. When the defendant is at liberty in the course of a criminal action as a result of a prior order of recognizance, release under non-monetary conditions or bail and the court revokes such order and then either, where authorized, fixes no bail or fixes bail in a greater amount or in --C a more burdensome form than was previously fixed and remands or commits defendant to the custody of the sheriff, or issues a more restrictive securing order, a judge designated in subdivision two of this section, upon application of the defendant following conviction of an offense other than a class A felony or a class B or class C felony offense as defined in article one hundred thirty of the penal law committed or attempted to be committed by a person eighteen years of age or older against a person less than eighteen years of age, and before sentencing, may issue a securing order and either release the defendant on his the defendant's own recognizance, release the defendant under non-monetary conditions, or, where authorized, fix bail, or fix bail in a lesser amount or in a less burdensome form, or issue a less restrictive securing order, than fixed by the court in which the conviction was entered.

§ 20. Section 530.60 of the criminal procedure law, subdivision 1 as amended by chapter 565 of

145 the laws of 2011, subdivision 2 as added by chapter 788 of the laws of 1981 and paragraph (a) of subdivision 2 as amended by chapter 794 of the laws of 1986, is amended to read as follows:

§ 530.60 Order of recognizance or bail; revocation thereof Certain modifications of a securing order. 1. Whenever in the course of a criminal action or proceeding a defendant is at liberty as a result of an order of recognizance, release under non-monetary conditions or bail issued pursuant to this chapter, and the court considers it necessary to review such order, it whether due to a motion by the people or otherwise, the court may, and except as provided in subdivision two of section 510.50 of this title concerning a failure to appear in court, by a bench warrant if necessary, require the defendant to appear before the court. Upon such appearance, the court, for good cause shown, may revoke the order of recognizance, release under non-monetary conditions, or bail. If the defendant is entitled to recognizance, release under non-monetary conditions, or bail as a matter of right, the court must issue another such order. If he or she the defendant is not, the court may either issue such an order or commit the defendant to the custody of the sheriff in accordance with this section.

Where the defendant is committed to the custody of the sheriff and is held on a felony complaint, a new period as provided in section 180.80 of this chapter shall commence to run from the time of the defendant's commitment under this subdivision.

2. (a) Whenever in the course of a criminal action or proceeding a defendant charged with the commission of a felony is at liberty as a result of an order of recognizance, release under non-monetary conditions or bail issued pursuant to this article it shall be grounds for revoking such order that the court finds reasonable cause to believe the defendant committed one or more specified class A or violent felony offenses or intimidated a victim or witness in violation of sections section 215.15, 215.16 or 215.17 of the penal law while at liberty.

(b) Except as provided in paragraph (a) of this subdivision or any other law, whenever in the course of a criminal action or proceeding a defendant charged with the commission of an offense is at liberty as a result of an order of recognizance, release under non-monetary conditions or bail issued pursuant to this article it shall be grounds for revoking such order and fixing bail in such criminal action or proceeding when the court has found, by clear and convincing evidence, that the defendant:

(i) persistently and willfully failed to appear after notice of scheduled appearances in the case before the court; or

(ii) violated an order of protection in the manner prohibited by subdivision (b), (c) or (d) of section 215.51 of the penal law while at liberty; or

(iii) stands charged in such criminal action or proceeding with a misdemeanor or violation and, after being so charged, intimidated a victim or witness in violation of section 215.15, 215.16 or

146 215.17 of the penal law or tampered with a witness in violation of section 215.11, 215.12 or 215.13 of the penal law, law while at liberty; or

(iv) stands charged in such action or proceeding with a felony and, after being so charged, committed a felony while at liberty.

(c) Before revoking an order of recognizance, release under non-monetary conditions, or bail pursuant to this subdivision, the court must hold a hearing and shall receive any relevant, admissible evidence not legally privileged. The defendant may cross-examine witnesses and may present relevant, admissible evidence on his own behalf. Such hearing may be consolidated with, and conducted at the same time as, a felony hearing conducted pursuant to article one hundred eighty of this chapter. A transcript of testimony taken before the grand jury upon presentation of the subsequent offense shall be admissible as evidence during the hearing. The district attorney may move to introduce grand jury testimony of a witness in lieu of that witness' appearance at the hearing.

(d) Revocation of an order of recognizance, release under nonmonetary conditions or bail and a new securing order fixing bail or commitment, as specified in this paragraph and pursuant to this subdivision shall be for the following periods, either:

(i) Under paragraph (a) of this subdivision, revocation of the order of recognizance, release under non-monetary conditions or, as the case may be, bail, and a new securing order fixing bail or committing the defendant to the custody of the sheriff shall be as follows:

(i) (A) For a period not to exceed ninety days exclusive of any periods of adjournment requested by the defendant; or

(ii) (B) Until the charges contained within the accusatory instrument have been reduced or dismissed such that no count remains which charges the defendant with commission of a felony; or

(iii) (C) Until reduction or dismissal of the charges contained within the accusatory instrument charging the subsequent offense such that no count remains which charges the defendant with commission of a class A or violent felony offense.

Upon expiration of any of the three periods specified within this paragraph subparagraph, whichever is shortest, the court may grant or deny release upon an order of bail or recognizance in accordance with the provisions of this article. Upon conviction to an offense the provisions of article five hundred thirty of this chapter shall apply.; and

(c) (ii) Under paragraph (b) of this subdivision, revocation of the order of recognizance, release under non-monetary conditions or, as the case may be, bail shall result in the issuance of a new

147 securing order which may, if otherwise authorized by law, permit the principal's release on recognizance or release under non-monetary conditions, but shall also render the defendant eligible for an order fixing bail provided, however, that in accordance with the principles in this title the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court. Nothing in this subparagraph shall be interpreted as shortening the period of detention, or requiring or authorizing any less restrictive form of a securing order, which may be imposed pursuant to any other law.

(e) Notwithstanding the provisions of paragraph (a) or (b) of this subdivision a defendant, against whom a felony complaint has been filed which charges the defendant with commission of a class A or violent felony offense or violation of section 215.15, 215.16 or 215.17 of the penal law committed while he was at liberty as specified therein, may be committed to the custody of the sheriff pending a revocation hearing for a period not to exceed seventy-two hours. An additional period not to exceed seventy-two hours may be granted by the court upon application of the district attorney upon a showing of good cause or where the failure to commence the hearing was due to the defendant's request or occurred with his consent. Such good cause must consist of some compelling fact or circumstance which precluded conducting the hearing within the initial prescribed period.

§ 21. Paragraph (a) of subdivision 9 of section 216.05 of the criminal procedure law, as amended by chapter 258 of the laws of 2015, is amended to read as follows:

(a) If at any time during the defendant's participation in the judicial diversion program, the court has reasonable grounds to believe that the defendant has violated a release condition in an important respect or has willfully failed to appear before the court as requested, the court except as provided in subdivision two of section 510.50 of this chapter regarding a failure to appear, shall direct the defendant to appear or issue a bench warrant to a police officer or an appropriate peace officer directing him or her to take the defendant into custody and bring the defendant before the court without unnecessary delay; provided, however, that under no circumstances shall a defendant who requires treatment for opioid abuse or dependence be deemed to have violated a release condition on the basis of his or her participation in medically prescribed drug treatments under the care of a health care professional licensed or certified under title eight of the education law, acting within his or her lawful scope of practice. The relevant provisions of subdivision one of section 530.60 of this chapter relating to revocation of recognizance or bail issuance of securing orders shall apply to such proceedings under this subdivision.

§ 22. The opening paragraph of section 240.44 of the criminal procedure law, as added by chapter 558 of the laws of 1982, is amended to read as follows:

Subject to a protective order, at a pre-trial hearing held in a criminal court at which a witness is called to testify, each party, at the conclusion prior to the commencement of the direct

148 examination of each of its witnesses, shall, upon request of the other party, make available to that party to the extent not previously disclosed:

§ 23. Section 410.60 of the criminal procedure law, as amended by chapter 652 of the laws of 2008, is amended to read as follows:

§ 410.60 Appearance before court.

A person who has been taken into custody pursuant to section 410.40 or section 410.50 of this article for violation of a condition of a sentence of probation or a sentence of conditional discharge must forthwith be brought before the court that imposed the sentence. Where a violation of probation petition and report has been filed and the person has not been taken into custody nor has a warrant been issued, an initial court appearance shall occur within ten business days of the --C court's issuance of a notice to appear. If the court has reasonable cause to believe that such person has violated a condition of the sentence, it may commit him such person to the custody of the sheriff or, fix bail, release such person under non-monetary conditions or release such person on his such person's own recognizance for future appearance at a hearing to be held in accordance with section 410.70 of this article. If the court does not have reasonable cause to believe that such person has violated a condition of the sentence, it must direct that he such person be released.

§ 24. Subdivision 3 of section 620.50 of the criminal procedure law is amended to read as follows:

3. A material witness order must be executed as follows:

(a) If the bail is posted and approved by the court, the witness must, as provided in subdivision three two of section 510.40 of this part, be released and be permitted to remain at liberty; provided that, where the bail is posted by a person other than the witness himself, he may not be so released except upon his signed written consent thereto;

(b) If the bail is not posted, or if though posted it is not approved by the court, the witness must, as provided in subdivision three two of section 510.40 of this part, be committed to the custody of the sheriff.

§ 25. This act shall take effect on January 1, 2020.

II. SPEEDY TRIAL

Section 1. Section 30.30 of the criminal procedure law, as added by chapter 184 of the laws of

149 1972, paragraph (a) of subdivision 3 as amended by chapter 93 of the laws of 2006, paragraph (a) of subdivision 4 as amended by chapter 558 of the laws of 1982, paragraph (c) of subdivision 4 as amended by chapter 631 of the laws of 1996, paragraph (h) of subdivision 4 as added by chapter 837 of the laws of 1986, paragraph (i) of subdivision 4 as added by chapter 446 of the laws of 1993, paragraph (j) of subdivision 4 as added by chapter 222 of the laws of 1994, paragraph (b) of subdivision 5 as amended by chapter 109 of the laws of 1982, paragraphs (e) and (f) of subdivision 5 as added by chapter 209 of the laws of 1990, is amended to read as follows:

§ 30.30 Speedy trial; time limitations.

1. Except as otherwise provided in subdivision three of this section, a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 of this chapter must be granted where the people are not ready for trial within:

(a) six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony;

(b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony;

(c) sixty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months and none of which is a crime punishable by a sentence of imprisonment of more than three months; or

(d) thirty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime. --C

(e) for the purposes of this subdivision, the term offense shall include vehicle and traffic law infractions.

2. Except as provided in subdivision three of this section, where a defendant has been committed to the custody of the sheriff or the office of children and family services in a criminal action he or she must be released on bail or on his or her own recognizance, upon such conditions as may be just and reasonable, if the people are not ready for trial in that criminal action within:

(a) ninety days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a felony;

(b) thirty days from the commencement of his or her commitment to the custody of the sheriff or

150 the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony;

(c) fifteen days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months and none of which is a crime punishable by a sentence of imprisonment of more than three months; or

(d) five days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime.

(e) for the purposes of this subdivision, the term offense shall include vehicle and traffic law infractions.

3. (a) Subdivisions one and two of this section do not apply to a criminal action wherein the defendant is accused of an offense defined in sections 125.10, 125.15, 125.20, 125.25, 125.26 and 125.27 of the penal law.

(b) A motion made pursuant to subdivisions one or two of this section upon expiration of the specified period may be denied where the people are not ready for trial if the people were ready for trial prior to the expiration of the specified period and their present unreadiness is due to some exceptional fact or circumstance, including, but not limited to, the sudden unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.

(c) A motion made pursuant to subdivision two of this section shall not:

(i) apply to any defendant who is serving a term of imprisonment for another offense;

(ii) require the release from custody of any defendant who is also being held in custody pending trial of another criminal charge as to which the applicable period has not yet elapsed;

(iii) prevent the redetention of or otherwise apply to any defendant who, after being released from custody pursuant to this section or otherwise, is charged with another crime or violates the conditions on which he has been released, by failing to appear at a judicial proceeding at which his presence is required or otherwise.

4. In computing the time within which the people must be ready for trial pursuant to subdivisions

151 one and two of this section, the following periods must be excluded:

(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court; or

(b) the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel. The court must may grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges. A defendant without counsel must not be deemed to have consented to a continuance unless he or she has been advised by the court of his or her rights under these rules and the effect of his consent, which must be done on the record in open court; or

(c) (i) the period of delay resulting from the absence or unavailability of the defendant. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence; or

(ii) where the defendant has either escaped from custody or has failed to appear when required after having previously been released on bail or on his own recognizance, and provided the defendant is not in custody on another matter, the period extending from the day the court issues a bench warrant pursuant to section 530.70 of this chapter because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise; or

(d) a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial pursuant to this section has not run and good cause is not shown for granting a severance; or

(e) the period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial; or

(f) the period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court; or

(g) other periods of delay occasioned by exceptional circumstances, including but not limited to,

152 the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people's case and additional time is justified by the exceptional circumstances of the case. Any such exclusion when a statement of unreadiness has followed a statement of readiness made by the people must be evaluated by the court after inquiry on the record as to the reasons for the people's unreadiness and shall only be approved upon a showing of sufficient supporting facts; or

(h) the period during which an action has been adjourned in contemplation of dismissal pursuant to sections 170.55, 170.56 and 215.10 of this chapter.; or

(i) The the period prior to the defendant's actual appearance for arraignment in a situation in which the defendant has been directed to appear by the district attorney pursuant to subdivision three of section 120.20 or subdivision three of section 210.10. of this chapter; or

(j) the period during which a family offense is before a family court until such time as an accusatory instrument or indictment is filed against the defendant alleging a crime constituting a family offense, as such term is defined in section 530.11 of this chapter.

5. Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section. Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met. This subdivision shall not apply to cases where the defense has waived disclosure requirements.

5-a. Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.

6. An order finally denying a motion to dismiss pursuant to subdivision one of this section shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.

7. For purposes of this section, (a) where the defendant is to be tried following the withdrawal of the plea of guilty or is to be retried following a mistrial, an order for a new trial or an appeal or

153 collateral attack, the criminal action and the commitment to the custody of the sheriff or the office of children and family services, if any, must be deemed to have commenced on the date the withdrawal of the plea of guilty or the date the order occasioning a retrial becomes final;

(b) where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket;

(c) where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article 180 one hundred eighty of this chapter or a prosecutor's information is filed pursuant to section 190.70 of this chapter, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, --C however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed;

(d) where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article 180 one hundred eighty of this chapter or a prosecutor's information is filed pursuant to section 190.70 of this chapter, the period applicable for the purposes of subdivision two of this section must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four of this section, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds ninety days, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.

(e) where a count of an indictment is reduced to charge only a misdemeanor or petty offense and a reduced indictment or a prosecutor's information is filed pursuant to subdivisions one-a and six of section 210.20 of this chapter, the period applicable for the purposes of subdivision one of this section must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four of this section, already elapsed from the date of the filing of the indictment to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in

154 the indictment must remain applicable and continue as if the new accusatory instrument had not been filed;

(f) where a count of an indictment is reduced to charge only a misdemeanor or petty offense and a reduced indictment or a prosecutor's information is filed pursuant to subdivisions one-a and six of section 210.20 of this chapter, the period applicable for the purposes of subdivision two of this section must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four of this section, already elapsed from the date of the filing of the indictment to the date of the filing of the new accusatory instrument exceeds ninety days, the period applicable to the charges in the indictment must remain applicable and continue as if the new accusatory instrument had not been filed.

8. The procedural rules prescribed in subdivisions one through seven of section 210.45 of this chapter with respect to a motion to dismiss an indictment are also not applicable to a motion made pursuant to subdivision two of this section. If, upon oral argument, a time period is in dispute, the court must promptly conduct a hearing in which the people must prove that the time period is excludable.

§ 2. This act shall take effect January 1, 2020.

III. DISCOVERY

Section 1. Article 240 of the criminal procedure law is REPEALED.

The criminal procedure law is amended by adding a new article 245 to read as follows:

ARTICLE 245

DISCOVERY

Section 245.10 Timing of discovery.

245.20 Automatic discovery.

245.25 Disclosure prior to certain guilty pleas.

155 245.30 Court orders for preservation, access or discovery.

245.35 Court ordered procedures to facilitate compliance.

245.40 Non-testimonial evidence from the defendant.

245.45 DNA comparison order.

245.50 Certificates of compliance; readiness for trial.

245.55 Flow of information.

245.60 Continuing duty to disclose.

245.65 Work product.

245.70 Protective orders.

245.75 Waiver of discovery by defendant.

245.80 Remedies or sanctions for non-compliance.

245.85 Admissibility of discovery.

§ 245.10 Timing of discovery.

1. (a) The prosecution shall perform its initial discovery obligations under subdivision one of section 245.20 of this article as soon as practicable but not later than fifteen calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, simplified information, misdemeanor complaint or felony complaint. Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.70 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of such section, and the discoverable portions of such materials shall be disclosed to the extent practicable. When the discoverable materials are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution, the time period in this paragraph may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article.

(b) The prosecution shall perform its supplemental discovery obligations under subdivision three of section 245.20 of this article as soon as practicable but not later than fifteen calendar days prior to the first scheduled trial date.

156 (c) The prosecution shall disclose statements of the defendant as described in paragraph (a) of subdivision one of section 245.20 of this article to any defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of a prospective or pending grand jury proceeding, no later than forty-eight hours before the time scheduled for the defendant to testify at a grand jury proceeding pursuant to subdivision five of section 190.50 of this part.

2. Defendant's performance of obligations. The defendant shall perform his or her discovery obligations under subdivision four of section 245.20 of this article not later than thirty calendar days after being served with the prosecution's certificate of compliance pursuant to subdivision one of section 245.50 of this article, except that portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.70 of this article; but the prosecution must be notified in writing that information has not been disclosed under a particular section.

§ 245.20 Automatic discovery.

1. Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to:

(a) All written or recorded statements, and the substance of all oral statements, made by the defendant or a co-defendant to a public servant engaged in law enforcement activity or to a person then acting under his or her direction or in cooperation with him or her.

(b) All transcripts of the testimony of a person who has testified before a grand jury, including but not limited to the defendant or a co-defendant. If in the exercise of reasonable diligence, and due to the limited availability of transcription resources, a transcript is unavailable for disclosure within the time period specified in subdivision one of section 245.10 of this article, such time period may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article; except that such disclosure shall be made as soon as practicable and not later than thirty calendar days before the first scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article. When the court is required to review grand jury transcripts, the prosecution shall disclose such transcripts to the court expeditiously upon receipt by the prosecutor, notwithstanding the otherwise-applicable time periods for disclosure in this article.

(c) The names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which

157 of those persons may be called as witnesses. Nothing in this paragraph shall require the disclosure of physical addresses; provided, however, upon a motion and good cause shown the court may direct the disclosure of a physical address. Information under this subdivision relating to a confidential informant may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.70 of this article; but the prosecution shall notify the defendant in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown.

(d) The name and work affiliation of all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Information under this subdivision relating to undercover personnel may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.70 of this article; but the prosecution shall notify the defendant in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown.

(e) All statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including --C all police reports, notes of police and other investigators, and law enforcement agency reports. This provision also includes statements, written or recorded or summarized in any writing or recording, by persons to be called as witnesses at pre-trial hearings.

(f) Expert opinion evidence, including the name, business address, current curriculum vitae, a list of publications, and all proficiency tests and results administered or taken within the past ten years of each expert witness whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, and all reports prepared by the expert that pertain to the case, or if no report is prepared, a written statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. This paragraph does not alter or in any way affect the procedures, obligations or rights set forth in section 250.10 of this title. If in the exercise of reasonable diligence this information is unavailable for disclosure within the time period specified in subdivision one of section 245.10 of this article, that period shall be stayed without need for a motion pursuant to subdivision two of section 245.70 of this article; except that the prosecution shall notify the defendant in writing that such information has not been disclosed, and such disclosure shall be made as soon as practicable and not later than sixty calendar days before the first scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article. When the prosecution's expert witness is being called in response to disclosure of an expert witness by the defendant, the court shall alter a scheduled trial date, if necessary, to allow the prosecution thirty calendar days to make the disclosure and the defendant thirty calendar days to prepare and respond to the new materials.

(g) All tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident, and a designation by the

158 prosecutor as to which of the recordings under this paragraph the prosecution intends to introduce at trial or a pre-trial hearing. If the discoverable materials under this paragraph exceed ten hours in total length, the prosecution may disclose only the recordings that it intends to introduce at trial or a pre-trial hearing, along with a list of the source and approximate quantity of other recordings and their general subject matter if known, and the defendant shall have the right upon request to obtain recordings not previously disclosed. The prosecution shall disclose the requested materials as soon as practicable and not less than fifteen calendar days after the defendant's request, unless an order is obtained pursuant to section 245.70 of this article.

(h) All photographs and drawings made or completed by a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which relate to the subject matter of the case.

(i) All photographs, photocopies and reproductions made by or at the direction of law enforcement personnel of any property prior to its release pursuant to section 450.10 of the penal law.

(j) All reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial --C hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing. Information under this paragraph also includes, but is not limited to, laboratory information management system records relating to such materials, any preliminary or final findings of nonconformance with accreditation, industry or governmental standards or laboratory protocols, and any conflicting analyses or results by laboratory personnel regardless of the laboratory's final analysis or results. If the prosecution submitted one or more items for testing to, or received results from, a forensic science laboratory or similar entity not under the prosecution's direction or control, the court on motion of a party shall issue subpoenas or orders to such laboratory or entity to cause materials under this paragraph to be made available for disclosure.

(k) All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously

159 upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article.

(l) A summary of all promises, rewards and inducements made to, or in favor of, persons who may be called as witnesses, as well as requests for consideration by persons who may be called as witnesses and copies of all documents relevant to a promise, reward or inducement.

(m) A list of all tangible objects obtained from, or allegedly possessed by, the defendant or a co-defendant. The list shall include a designation by the prosecutor as to which objects were physically or constructively possessed by the defendant and were recovered during a search or seizure by a public servant or an agent thereof, and which tangible objects were recovered by a public servant or an agent thereof after allegedly being abandoned by the defendant. If the prosecution intends to prove the defendant's possession of any tangible objects by means of a statutory presumption of possession, it shall designate such intention as to each such object. If reasonably practicable, the prosecution shall also designate the location from which each tangible object was recovered. There is also a right to inspect, copy, photograph and test the listed tangible objects.

(n) Whether a search warrant has been executed and all documents relating thereto, including but not limited to the warrant, the warrant application, supporting affidavits, a police inventory of all property seized under the warrant, and a transcript of all testimony or other oral communications offered in support of the warrant application.

(o) All tangible property that relates to the subject matter of the case, along with a designation of which items the prosecution intends to introduce in its case-in-chief at trial or a pre-trial hearing. If in the exercise of reasonable diligence the prosecutor has not formed an intention within the time period specified in subdivision one of section 245.10 of this article that an item under this subdivision will be --C introduced at trial or a pre-trial hearing, the prosecution shall notify the defendant in writing, and the time period in which to designate items as exhibits shall be stayed without need for a motion pursuant to subdivision two of section 245.70 of this article; but the disclosure shall be made as soon as practicable and subject to the continuing duty to disclose in section 245.60 of this article.

(p) A complete record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses pursuant to paragraph (c) of this subdivision, other than those witnesses who are experts.

(q) When it is known to the prosecution, the existence of any pending criminal action against all persons designated as potential prosecution witnesses pursuant to paragraph (c) of this subdivision.

(r) The approximate date, time and place of the offense or offenses charged and of the defendant's

160 seizure and arrest.

(s) In any prosecution alleging a violation of the vehicle and traffic law, where the defendant is charged by indictment, superior court information, prosecutor's information, information, or simplified information, all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests and experiments, including but not limited to any test of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted, including the records of gas chromatography related to the certification of all reference standards and the certification certificate, if any, held by the operator of the machine or instrument. The time period required by subdivision one of section 245.10 of this article shall not apply to the disclosure of records created six months after a test was conducted, but such disclosure shall be made as soon as practicable and in any event, the earlier of fifteen days following receipt, or fifteen days before the first scheduled trial date.

(t) In any prosecution alleging a violation of section 156.05 or 156.10 of the penal law, the time, place and manner such violation occurred.

(u) (i) A copy of all electronically created or stored information seized or obtained by or on behalf of law enforcement from: (A) the defendant as described in subparagraph (ii) of this paragraph; or (B) a source other than the defendant which relates to the subject matter of the case.

(ii) If the electronically created or stored information originates from a device, account, or other electronically stored source that the prosecution believes the defendant owned, maintained, or had lawful access to and is within the possession, custody or control of the prosecution or persons under the prosecution's direction or control, the prosecution shall provide a complete copy of the electronically created or stored information from the device or account or other source.

(iii) If possession of such electronically created or stored information would be a crime under New York state or federal law, the prosecution shall make those portions of the electronically created or stored information that are not criminal to possess available as specified under this paragraph and shall afford counsel for the defendant access to inspect contraband portions at a supervised location that provides regular and reasonable hours for such access, such as a prosecutor's office, police station, or court.

(iv) This paragraph shall not be construed to alter or in any way affect the right to be free from unreasonable searches and seizures or --C such other rights a suspect or defendant may derive from the state constitution or the United States constitution. If in the exercise of reasonable diligence the information under this paragraph is not available for disclosure within the time period required by subdivision one of section 245.10 of this article, that period shall be stayed without need for a motion pursuant to subdivision two of section 245.70 of this article, except that the prosecution shall notify the defendant in writing that such information has not been disclosed, and such disclosure shall be made as soon as practicable and not later than forty-five calendar

161 days before the first scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article.

2. Duties of the prosecution. The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution. The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge. This subdivision shall not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency, or the written or recorded statements thereof, under paragraph (c) or (e) of subdivision one of this section.

3. Supplemental discovery for the defendant. The prosecution shall disclose to the defendant a list of all misconduct and criminal acts of the defendant not charged in the indictment, superior court information, prosecutor's information, information, or simplified information, which the prosecution intends to use at trial for purposes of (a) impeaching the credibility of the defendant, or (b) as substantive proof of any material issue in the case. In addition the prosecution shall designate whether it intends to use each listed act for impeachment and/or as substantive proof.

4. Reciprocal discovery for the prosecution. (a) The defendant shall, subject to constitutional limitations, disclose to the prosecution, and permit the prosecution to discover, inspect, copy or photograph, any material and relevant evidence within the defendant's or counsel for the defendant's possession or control that is discoverable under paragraphs (f), (g), (h), (j), (l) and (o) of subdivision one of this section, which the defendant intends to introduce at trial or a pre-trial hearing, and the names, addresses, birth dates, and all statements, written or recorded or summarized in any writing or recording, of those persons other than the defendant whom the defendant intends to call as witnesses at trial or a pre-trial hearing.

(b) Disclosure of the name, address, birth date, and all statements, written or recorded or summarized in any writing or recording, of a person whom the defendant intends to call as a witness for the sole purpose of impeaching a prosecution witness is not required until after the prosecution witness has testified at trial.

(c) If in the exercise of reasonable diligence the reciprocally discoverable information under paragraph (f) or (o) of subdivision one of this section is unavailable for disclosure within the time period --C specified in subdivision two of section 245.10 of this article, such time period shall be stayed without need for a motion pursuant to subdivision two of section 245.70 of this article; but the disclosure shall be made as soon as practicable and subject to the continuing duty to disclose

162 in section 245.60 of this article.

5. Stay of automatic discovery; remedies and sanctions. Section 245.10 and subdivisions one, two, three and four of this section shall have the force and effect of a court order, and failure to provide discovery pursuant to such section or subdivision may result in application of any remedies or sanctions permitted for non-compliance with a court order under section 245.80 of this article. However, if in the judgment of either party good cause exists for declining to make any of the disclosures set forth above, such party may move for a protective order pursuant to section 245.70 of this article and production of the item shall be stayed pending a ruling by the court. The opposing party shall be notified in writing that information has not been disclosed under a particular section. When some parts of material or information are discoverable but in the judgment of a party good cause exists for declining to disclose other parts, the discoverable parts shall be disclosed and the disclosing party shall give notice in writing that non-discoverable parts have been withheld.

6. Redactions permitted. Either party may redact social security numbers and tax numbers from disclosures under this article.

7. Presumption of openness. There shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article.

§ 245.25 Disclosure prior to certain guilty pleas.

1. Pre-indictment guilty pleas. Upon a felony complaint, where the prosecution has made a pre-indictment guilty plea offer requiring a plea to a crime, the prosecutor must disclose to the defense, and permit the defense to discover, inspect, copy, photograph and test, all items and information that would be discoverable prior to trial under subdivision one of section 245.20 of this article and are in the possession, custody or control of the prosecution. The prosecution shall disclose the discoverable items and information not less than three calendar days prior to the expiration date of any guilty plea offer by the prosecution or any deadline imposed by the court for acceptance of the guilty plea offer. If the prosecution does not comply with the requirements of this subdivision, then, on a defendant's motion alleging a violation of this subdivision, the court must consider the impact of any violation on the defendant's decision to accept or reject a plea offer. If the court finds that such violation materially affected the defendant's decision, and if the prosecution declines to reinstate the lapsed or withdrawn plea offer, the court - as a presumptive minimum sanction - must preclude the admission at trial of any evidence not disclosed as required under this subdivision. The court may take other appropriate action as necessary to address the non-compliance. The rights under this subdivision do not apply to items or information that are the subject of a protective order under section 245.70 of this article; but if such information tends to be exculpatory, the court shall reconsider the protective order. A defendant may waive his or her rights under this subdivision; but a guilty plea offer may not be conditioned on such waiver.

163 2. Other guilty pleas. Upon an indictment, superior court information, prosecutor's information, information, simplified information, or misdemeanor complaint, where the prosecution has made a guilty plea --C offer requiring a plea to a crime, the prosecutor must disclose to the defense, and permit the defense to discover, inspect, copy, photograph and test, all items and information that would be discoverable prior to trial under subdivision one of section 245.20 of this article and are within the possession, custody or control of the prosecution. The prosecution shall disclose the discoverable items and information not less than seven calendar days prior to the expiration date of any guilty plea offer by the prosecution or any deadline imposed by the court for acceptance of the guilty plea offer. If the prosecution does not comply with the requirements of this subdivision, then, on a defendant's motion alleging a violation of this subdivision, the court must consider the impact of any violation on the defendant's decision to accept or reject a plea offer. If the court finds that such violation materially affected the defendant's decision, and if the prosecution declines to reinstate the lapsed or withdrawn plea offer, the court - as a presumptive minimum sanction - must preclude the admission at trial of any evidence not disclosed as required under this subdivision. The court may take other appropriate action as necessary to address the non-compliance. The rights under this subdivision do not apply to items or information that are the subject of a protective order under section 245.70 of this article; but if such information tends to be exculpatory, the court shall reconsider the protective order. A defendant may waive his or her rights under this subdivision; but a guilty plea offer may not be conditioned on such waiver.

§ 245.30 Court orders for preservation, access or discovery.

1. Order to preserve evidence. At any time, a party may move for a court order to any individual, agency or other entity in possession, custody or control of items which relate to the subject matter of the case or are otherwise relevant, requiring that such items be preserved for a specified period of time. The court shall hear and rule upon such motions expeditiously. The court may modify or vacate such an order upon a showing that preservation of particular evidence will create significant hardship to such individual, agency or entity, on condition that the probative value of that evidence is preserved by a specified alternative means.

2. Order to grant access to premises. Without prejudice to its ability to issue a subpoena pursuant to this chapter and after an accusatory instrument has been filed, the defendant may move, upon notice to the prosecution and any impacted individual, agency, or entity, for a court order to access a crime scene or other premises relevant to the subject matter of the case, requiring that counsel for the defendant be granted reasonable access to inspect, photograph, or measure such crime scene or premises, and that the condition of the crime scene or premises remain unchanged in the interim. The court shall consider defendant's expressed need for access to the premises including the risk that defendant will be deprived of evidence or information relevant to the case, the position of any individual or entity with possessory or ownership rights to the premises, the nature of the privacy interest and any perceived or actual hardship of the individual or entity with possessory or ownership rights, and the position of the prosecution with respect to any application for access to the premises. The court may deny access to the premises when the probative value of

164 access to such location has been or will be preserved by specified alternative means. If the court grants access to the premises, the individual or entity with ownership or possessory rights to the premises may request law enforcement presence --C at the premises while defense counsel or a representative thereof is present.

3. Discretionary discovery by order of the court. The court in its discretion may, upon a showing by the defendant that the request is reasonable and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, order the prosecution, or any individual, agency or other entity subject to the jurisdiction of the court, to make available for disclosure to the defendant any material or information which relates to the subject matter of the case and is reasonably likely to be material. A motion under this subdivision must be on notice to any person or entity affected by the order. The court may, on its own, upon request of any person or entity affected by the order, modify or vacate the order if compliance would be unreasonable or will create significant hardship. For good cause shown, the court may permit a party seeking or opposing a discretionary order of discovery under this subdivision, or another affected person or entity, to submit papers or testify on the record ex parte or in camera. For good cause shown, any such papers and a transcript of such testimony may be sealed and shall constitute a part of the record on appeal.

§ 245.35 Court ordered procedures to facilitate compliance.

To facilitate compliance with this article, and to reduce or streamline litigation of any disputes about discovery, the court in its discretion may issue an order:

1. Requiring that the prosecutor and counsel for the defendant diligently confer to attempt to reach an accommodation as to any dispute concerning discovery prior to seeking a ruling from the court;

2. Requiring a discovery compliance conference at a specified time prior to trial between the prosecutor, counsel for all defendants, and the court or its staff;

3. Requiring the prosecution to file an additional certificate of compliance that states that the prosecutor and/or an appropriate named agent has made reasonable inquiries of all police officers and other persons who have participated in investigating or evaluating the case about the existence of any favorable evidence or information within paragraph (k) of subdivision one of section 245.20 of this article, including such evidence or information that was not reduced to writing or otherwise memorialized or preserved as evidence, and has disclosed any such information to the defendant; and/or

4. Requiring other measures or proceedings designed to carry into effect the goals of this article.

§ 245.40 Non-testimonial evidence from the defendant.

165 1. Availability. After the filing of an accusatory instrument, and subject to constitutional limitations, the court may, upon motion of the prosecution showing probable cause to believe the defendant has committed the crime, a clear indication that relevant material evidence will be found, and that the method used to secure such evidence is safe and reliable, require a defendant to provide non-testimonial evidence, including to:

(a) Appear in a lineup;

(b) Speak for identification by a witness or potential witness;

(c) Be fingerprinted;

(d) Pose for photographs not involving reenactment of an event;

(e) Permit the taking of samples of the defendant's blood, hair, and other materials of the defendant's body that involves no unreasonable intrusion thereof;

(f) Provide specimens of the defendant's handwriting; and --C

(g) Submit to a reasonable physical or medical inspection of the defendant's body.

2. Limitations. This section shall not be construed to alter or in any way affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument, consistent with such rights as the defendant may derive from the state constitution or the United States constitution. This section shall not be construed to alter or in any way affect the administration of a chemical test where otherwise authorized. An order pursuant to this section may be denied, limited or conditioned as provided in section 245.70 of this article.

§ 245.45 DNA comparison order.

Where property in the prosecution's possession, custody, or control consists of a deoxyribonucleic acid ("DNA") profile obtained from probative biological material gathered in connection with the investigation of the crime, or the defendant, or the prosecution of the defendant, and the defendant establishes (a) that such profile complies with federal bureau of investigation or state requirements, whichever are applicable and as such requirements are applied to law enforcement agencies seeking a keyboard search or similar comparison, and (b) that the data meets state DNA index system or national DNA index system criteria as such criteria are applied to law enforcement agencies seeking such a keyboard search or similar comparison, the court may, upon motion of a defendant against whom an indictment, superior court information, prosecutor's information, information, or simplified information is pending, order an entity that has access to the combined DNA index system or its successor system to compare such DNA profile against DNA databanks by keyboard searches, or a similar method that does not involve uploading, upon

166 notice to both parties and the entity required to perform the search, upon a showing by the defendant that such a comparison is material to the presentation of his or her defense and that the request is reasonable. For purposes of this section, a "keyboard search" shall mean a search of a DNA profile against the databank in which the profile that is searched is not uploaded to or maintained in the databank.

§ 245.50 Certificates of compliance; readiness for trial.

1. By the prosecution. When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article.

2. By the defendant. When the defendant has provided all discovery required by subdivision four of section 245.20 of this article, except for any items or information that are the subject of an order pursuant to section 245.70 of this article, counsel for the defendant shall serve --C upon the prosecution and file with the court a certificate of compliance. The certificate shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, counsel for the defendant has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the prosecution and filed with the court identifying the additional material and information provided. No adverse consequence to the defendant or counsel for the defendant shall result from the filing of a certificate of compliance in good faith; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article.

3. Trial readiness. Notwithstanding the provisions of any other law, absent an individualized finding of exceptional circumstances by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section.

167 § 245.55 Flow of information.

1. Sufficient communication for compliance. The district attorney and the assistant responsible for the case, or, if the matter is not being prosecuted by the district attorney, the prosecuting agency and its assigned representative, shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article.

2. Provision of law enforcement agency files. Absent a court order or a requirement that defense counsel obtain a security clearance mandated by law or authorized government regulation, upon request by the prosecution, each New York state and local law enforcement agency shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article.

3. 911 telephone call and police radio transmission electronic recordings, police worn body camera recordings and other police recordings. (a) Whenever an electronic recording of a 911 telephone call or a police radio transmission or video or audio footage from a police body-worn camera or other police recording was made or received in connection with the investigation of an apparent criminal incident, the arresting officer or lead detective shall expeditiously notify the prosecution in writing upon the filing of an accusatory instrument of the existence of all such known recordings. The prosecution shall expeditiously take whatever reasonable steps are necessary to ensure that all known electronic recordings of 911 telephone calls, police radio transmissions and video and audio footage and other police recordings made or available in connection with the case are preserved. Upon the defendant's timely request and designation of a specific electronic recording of a 911 telephone call, the prosecution shall also expeditiously take whatever reasonable steps are necessary to ensure that it is preserved.

(b) If the prosecution fails to disclose such an electronic recording to the defendant pursuant to paragraph (e), (g) or (k) of subdivision one of section 245.20 of this article due to a failure to comply with this obligation by police officers or other law enforcement or prosecution personnel, the court upon motion of the defendant shall impose an appropriate remedy or sanction pursuant to section 245.80 of this article.

§ 245.60 Continuing duty to disclose.

If either the prosecution or the defendant subsequently learns of additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order, it shall expeditiously notify the other party and disclose the additional material and information as required for initial

168 discovery under this article. This section also requires expeditious disclosure by the prosecution of material or information that became relevant to the case or discoverable based on reciprocal discovery received from the defendant pursuant to subdivision four of section 245.20 of this article.

§ 245.65 Work product.

This article does not authorize discovery by a party of those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories or conclusions of the adverse party or its attorney or the attorney's agents, or of statements of a defendant, written or recorded or summarized in any writing or recording, made to the attorney for the defendant or the attorney's agents.

§ 245.70 Protective orders.

1. Any discovery subject to protective order. Upon a showing of good cause by either party, the court may at any time order that discovery or inspection of any kind of material or information under this article be denied, restricted, conditioned or deferred, or make such other order as is appropriate. The court may impose as a condition on discovery to a defendant that the material or information to be discovered be available only to counsel for the defendant; or, alternatively, that counsel for the defendant, and persons employed by the attorney or appointed by the court to assist in the preparation of a defendant's case, may not disclose physical copies of the discoverable documents to a defendant or to anyone else, provided that the prosecution affords the defendant access to inspect redacted copies of the discoverable documents at a supervised location that provides regular and reasonable hours for such access, such as a prosecutor's office, police station, facility of detention, or court. Should the court impose as a condition that some material or information be available only to counsel for the defendant, the court shall inform the defendant on the record that his or her attorney is not permitted by law to disclose such material or information to the defendant. The court may permit a party seeking or opposing a protective order under this section, or another affected person, to submit papers or testify on the record ex parte or in camera. Any such papers and a transcript of such testimony may be sealed and shall constitute a part of the record on appeal. This section does not alter the allocation of the burden of proof with regard to matters at issue, including privilege.

2. Modification of time periods for discovery. Upon motion of a party in an individual case, the court may alter the time periods for discovery imposed by this article upon a showing of good cause.

3. Prompt hearing. Upon request for a protective order, unless the defendant voluntarily consents to the people's request for a protective order, the court shall conduct an appropriate hearing within three business days to determine whether good cause has been shown and when practicable shall

169 render a decision expeditiously. Any materials submitted and a transcript of the proceeding may be sealed and shall constitute a part of the record on appeal.

4. Showing of good cause. In determining good cause under this section the court may consider: constitutional rights or limitations; danger to the integrity of physical evidence or the safety of a witness; risk of intimidation, economic reprisal, bribery, harassment or unjustified annoyance or embarrassment to any person, and the nature, severity and likelihood of that risk; a risk of an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, and the nature, severity and likelihood of that risk; the nature and circumstances of the factual allegations in the case; whether the defendant has a history of witness intimidation or tampering and the nature of that history; the nature of the stated reasons in support of a protective order; the nature of the witness identifying information that is sought to be addressed by a protective order, including the option of employing adequate alternative contact information; danger to any person stemming from factors such as a defendant's substantiated affiliation with a criminal enterprise as defined in subdivision three of section 460.10 of the penal law; and other similar factors found to outweigh the usefulness of the discovery.

5. Successor counsel or pro se defendant. In cases in which the attorney-client relationship is terminated prior to trial for any reason, any material or information disclosed subject to a condition that it be available only to counsel for the defendant, or limited in dissemination by protective order or otherwise, shall be provided only to successor counsel for the defendant under the same condition or conditions or be returned to the prosecution, unless the court rules otherwise for good cause shown or the prosecutor gives written consent. Any work product derived from such material or information shall not be provided to the defendant, unless the court rules otherwise or the prosecutor gives written consent. If the defendant is acting as his or her own attorney, the court may regulate the time, place and manner of access to any discoverable material or information; and it may as appropriate appoint persons to assist the defendant in the investigation or preparation of the case. Upon motion or application of a defendant acting as his or her own attorney, the court may at any time modify or vacate any condition or restriction relating to access to discoverable material or information, for good cause shown.

6. Expedited review of adverse ruling. (a) A party that has unsuccessfully sought, or unsuccessfully opposed the granting of, a protective order under this section relating to the name, address, contact information or statements of a person may obtain expedited review of that ruling by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction in the case would be taken.

(b) Such review shall be sought within two business days of the adverse or partially adverse ruling, by order to show cause filed with the intermediate appellate court. The order to show cause shall in addition be timely served on the lower court and on the opposing party, and shall be accompanied by a sworn affirmation stating in good faith (i) that the ruling affects substantial interests, and (ii) that diligent --C efforts to reach an accommodation of the underlying discovery

170 dispute with opposing counsel failed or that no accommodation was feasible; except that service on the opposing party, and a statement regarding efforts to reach an accommodation, are unnecessary where the opposing party was not made aware of the application for a protective order and good cause is shown for omitting service of the order to show cause on the opposing party. The lower court's order subject to review shall be stayed until the appellate justice renders a determination.

(c) The assignment of the individual appellate justice, and the mode of and procedure for the review, shall be determined by rules of the individual appellate courts. The appellate justice may consider any relevant and reliable information bearing on the issue, and may dispense with written briefs other than supporting and opposing materials previously submitted to the lower court. The appellate justice may dispense with the issuance of a written opinion in rendering his or her decision, and when practicable shall render decision and order expeditiously. Such review, decision and order shall not affect the right of a defendant, in a subsequent appeal from a judgment of conviction, to claim as error the ruling reviewed.

7. Compliance with protective order. Any protective order issued under this article is a mandate of the court for purposes of the offense of criminal contempt in subdivision three of section 215.50 of the penal law.

§ 245.75 Waiver of discovery by defendant.

A defendant who does not seek discovery from the prosecution under this article shall so notify the prosecution and the court at the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, or simplified information, or expeditiously thereafter but before receiving discovery from the prosecution pursuant to subdivision one of section 245.20 of this article, and the defendant need not provide discovery to the prosecution pursuant to subdivision four of section 245.20 and section 245.60 of this article. A waiver shall be in writing, signed for the individual case by counsel for the defendant and filed with the court. Such a waiver does not alter or in any way affect the procedures, obligations or rights set forth in sections 250.10, 250.20 and 250.30 of this title, or otherwise established or required by law. The prosecution may not condition a guilty plea offer on the defense's execution of a waiver under this section.

§ 245.80 Remedies or sanctions for non-compliance.

1. Need for remedy or sanction. (a) When material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material.

171 (b) When material or information is discoverable under this article but cannot be disclosed because it has been lost or destroyed, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that the lost or destroyed material may have contained some information relevant to a contested issue. The appropriate remedy or sanction is that which is proportionate to the potential ways in which the lost or destroyed material reasonably could have been helpful to the party entitled to disclosure.

2. Available remedies or sanctions. For failure to comply with any discovery order imposed or issued pursuant to this article, the court --C may make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the non-compliance, preclude or strike a witness's testimony or a portion of a witness's testimony, admit or exclude evidence, order a mistrial, order the dismissal of all or some of the charges, or make such other order as it deems just under the circumstances; except that any sanction against the defendant shall comport with the defendant's constitutional right to present a defense, and precluding a defense witness from testifying shall be permissible only upon a finding that the defendant's failure to comply with the discovery obligation or order was willful and motivated by a desire to obtain a tactical advantage.

3. Consequences of non-disclosure of statement of testifying prosecution witness. The failure of the prosecutor or any agent of the prosecutor to disclose any written or recorded statement made by a prosecution witness which relates to the subject matter of the witness's testimony shall not constitute grounds for any court to order a new pre-trial hearing or set aside a conviction, or reverse, modify or vacate a judgment of conviction, in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding; provided, however, that nothing in this section shall affect or limit any right the defendant may have to a reopened pre-trial hearing when such statements were disclosed before the close of evidence at trial.

§ 245.85 Admissibility of discovery.

The fact that a party has indicated during the discovery process an intention to offer specified evidence or to call a specified witness is not admissible in evidence or grounds for adverse comment at a hearing or a trial.

§ 3. Subdivision 3 of section 610.20 of the criminal procedure law is amended and a new subdivision 4 is added to read as follows:

3. An attorney for a defendant in a criminal action or proceeding, as an officer of a criminal court, may issue a subpoena of such court, subscribed by himself, for the attendance in such court of any witness whom the defendant is entitled to call in such action or proceeding. An attorney for a defendant may not issue a subpoena duces tecum of the court directed to any department, bureau

172 or agency of the state or of a political subdivision thereof, or to any officer or representative thereof, unless the subpoena is indorsed by the court and provides at least three days for the production of the requested materials. In the case of an emergency, the court may by order dispense with the three-day production period. Such a subpoena duces tecum may be issued in behalf of a defendant upon order of a court pursuant to the rules applicable to civil cases as provided in section twenty-three hundred seven of the civil practice law and rules.

4. The showing required to sustain any subpoena under this section is that the testimony or evidence sought is reasonably likely to be relevant and material to the proceedings, and the subpoena is not overbroad or unreasonably burdensome.

§ 4. Subdivision 9 of section 65.20 of the criminal procedure law, as added by chapter 505 of the laws of 1985 and as renumbered by chapter 548 of the laws of 2007, is amended to read as follows:

9. (a) Prior to the commencement of the hearing conducted pursuant to subdivision five six of this section, the district attorney shall, subject to a protective order, comply with the provisions of subdivision one of section 245.20 of this chapter as they concern any witness whom the district attorney intends to call at the hearing and the child witness.

(b) Before a defendant calls a witness at such hearing, he or she must, subject to a protective order, comply with the provisions of subdivision two four of section 245.20 of this chapter as they concern all the witnesses the defendant intends to call at such hearing.

§ 5. Subdivision 5 of section 200.95 of the criminal procedure law, as added by chapter 558 of the laws of 1982, is amended to read as follows:

5. Court ordered bill of particulars. Where a prosecutor has timely served a written refusal pursuant to subdivision four of this section and upon motion, made in writing, of a defendant, who has made a request for a bill of particulars and whose request has not been complied with in whole or in part, the court must, to the extent a protective order is not warranted, order the prosecutor to comply with the request if it is satisfied that the items of factual information requested are authorized to be included in a bill of particulars, and that such information is necessary to enable the defendant adequately to prepare or conduct his defense and, if the request was untimely, a finding of good cause for the delay. Where a prosecutor has not timely served a written refusal pursuant to subdivision four of this section the court must, unless it is satisfied that the people have shown good cause why such an order should not be issued, issue an order requiring the prosecutor to comply or providing for any other order authorized by subdivision one of section 240.70 section 245.80 of this part.

173 § 6. Paragraph (c) of subdivision 1 of section 255.10 of the criminal procedure law, as added by chapter 763 of the laws of 1974, is amended to read as follows:

(c) granting discovery pursuant to article 240 245; or

§ 7. Subdivision 1 of section 255.20 of the criminal procedure law, as amended by chapter 369 of the laws of 1982, is amended to read as follows:

1. Except as otherwise expressly provided by law, whether the defendant is represented by counsel or elects to proceed pro se, all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment. In an action in which either (a) material or information has been disclosed pursuant to paragraph (m) or (n) of subdivision one of section 245.20 of this title, (b) an eavesdropping warrant and application have been furnished pursuant to section 700.70 of this chapter, or (c) a notice of intention to introduce evidence has been served pursuant to section 710.30 of this chapter, such period shall be extended until forty-five days after the last date of such service. If the defendant is not represented by counsel and has requested an adjournment to obtain counsel or to have counsel assigned, such fortyfive day period shall commence on the date counsel initially appears on defendant's behalf.

§ 8. Section 340.30 of the criminal procedure law is amended to read as follows:

§ 340.30 Pre-trial discovery and notices of defenses.

The provisions of article two hundred forty forty-five of this part, concerning pre-trial discovery by a defendant under indictment in a superior court, and article two hundred fifty of this part, concerning pre-trial notice to the people by a defendant under indictment in a superior court who intends to advance a trial defense of mental disease --C or defect or of alibi, apply to a prosecution of an information in a local criminal court.

§ 9. Subdivision 14 of section 400.27 of the criminal procedure law, as added by chapter 1 of the laws of 1995, is amended to read as follows:

14. (a) At a reasonable time prior to the sentencing proceeding or a mental retardation hearing:

(i) the prosecutor shall, unless previously disclosed and subject to a protective order, make available to the defendant the statements and information specified in subdivision one of section 245.20 of this part and make available for inspection, photographing, copying or testing the property specified in subdivision one of section 245.20; and

174 (ii) the defendant shall, unless previously disclosed and subject to a protective order, make available to the prosecution the statements and information specified in subdivision two four of section 245.20 and make available for inspection, photographing, copying or testing, subject to constitutional limitations, the reports, documents and other property specified in subdivision one of section 245.20 of this part.

(b) Where a party refuses to make disclosure pursuant to this section, the provisions of section 245.70, 245.75 and/or 245.80 of this part shall apply.

(c) If, after complying with the provisions of this section or an order pursuant thereto, a party finds either before or during a sentencing proceeding or mental retardation hearing, additional material subject to discovery or covered by court order, the party shall promptly make disclosure or apply for a protective order.

(d) If the court finds that a party has failed to comply with any of the provisions of this section, the court may enter employ any of the orders remedies or sanctions specified in subdivision one of section 245.80 of this part.

§ 10. The opening paragraph of paragraph (b) of subdivision 1 of section 440.30 of the criminal procedure law, as added by chapter 19 of the laws of 2012, is amended to read as follows:

In conjunction with the filing or consideration of a motion to vacate a judgment pursuant to section 440.10 of this article by a defendant convicted after a trial, in cases where the court has ordered an evidentiary hearing upon such motion, the court may order that the people produce or make available for inspection property, as defined in subdivision three of section 240.10 of this part, in its possession, custody, or control that was secured in connection with the investigation or prosecution of the defendant upon credible allegations by the defendant and a finding by the court that such property, if obtained, would be probative to the determination of defendant's actual innocence, and that the request is reasonable. The court shall deny or limit such a request upon a finding that such a request, if granted, would threaten the integrity or chain of custody of property or the integrity of the processes or functions of a laboratory conducting DNA testing, pose a risk of harm, intimidation, embarrassment, reprisal, or other substantially negative consequences to any person, undermine the proper functions of law enforcement including the confidentiality of informants, or on the basis of any other factor identified by the court in the interests of justice or public safety. The court shall further ensure that any property produced pursuant to this paragraph is subject to a protective order, where appropriate. The court shall deny any request made pursuant to this paragraph where:

§ 11. Subdivision 10 of section 450.10 of the penal law, as added by chapter 795 of the laws of 1984, is amended to read as follows:

175 10. Where there has been a failure to comply with the provisions of this section, and where the district attorney does not demonstrate to the satisfaction of the court that such failure has not caused the defendant prejudice, the court shall instruct the jury that it may consider such failure in determining the weight to be given such evidence and may also impose any other sanction set forth in subdivision one of section 245.80 of the criminal procedure law; provided, however, that unless the defendant has convinced the court that such failure has caused him undue prejudice, the court shall not preclude the district attorney from introducing into evidence the property, photographs, photocopies, or other reproductions of the property or, where appropriate, testimony concerning its value and condition, where such evidence is otherwise properly authenticated and admissible under the rules of evidence. Failure to comply with any one or more of the provisions of this section shall not for that reason alone be grounds for dismissal of the accusatory instrument.

§ 12. Section 460.80 of the penal law, as added by chapter 516 of the laws of 1986, is amended to read as follows:

§ 460.80 Court ordered disclosure.

Notwithstanding the provisions of article two hundred forty fortyfive of the criminal procedure law, when forfeiture is sought pursuant to section 460.30 of this chapter article, the court may order discovery of any property not otherwise disclosed which is material and reasonably necessary for preparation by the defendant with respect to the forfeiture proceeding pursuant to such section. The court may issue a protective order denying, limiting, conditioning, delaying or regulating such discovery where a danger to the integrity of physical evidence or a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors outweighs the usefulness of the discovery.

§ 13. Subdivision 5 of section 480.10 of the penal law, as added by chapter 655 of the laws of 1990, is amended to read as follows:

5. In addition to information required to be disclosed pursuant to article two hundred forty forty-five of the criminal procedure law, when forfeiture is sought pursuant to this article, and following the defendant's arraignment on the special forfeiture information, the court shall order discovery of any information not otherwise disclosed which is material and reasonably necessary for preparation by the defendant with respect to a forfeiture proceeding brought pursuant to this article. Such material shall include those portions of the grand jury minutes and such other information which pertain solely to the special forfeiture information and shall not include information which pertains to the criminal charges. Upon application of the prosecutor, the court

176 may issue a protective order pursuant to section 240.40 245.70 of the criminal procedure law with respect to any information required to be disclosed pursuant to this subdivision.

§ 14. This act shall take effect January 1, 2020; provided, however, the amendments to section 65.20 of the criminal procedure law made by section four of this act shall not affect the repeal of such section and shall be deemed repealed therewith.

IV. EXTREME RISK PROTECTION ORDERS Effective August 24, 2019

6340. Definitions.

6341. Application for an extreme risk protection order.

6342. Issuance of a temporary extreme risk protection order.

6343. Issuance of a final extreme risk protection order.

6344. Surrender and removal of firearms, rifles and shotguns pursuant to an extreme risk protection order.

6345. Request for renewal of an extreme risk protection order.

6346. Expiration of an extreme risk protection order.

6347. Effect of findings and determinations in subsequent proceedings.

§ 6340. Definitions

For the purposes of this article:

1. “Extreme risk protection order” means a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.

2. “Petitioner” means: (a) a police officer, as defined in section 1.20 of the criminal procedure law, or district attorney with jurisdiction in the county or city where the person against whom the order is sought resides; (b) a family or household member, as defined in subdivision two of section four hundred fifty-nine-a of the social services law, of the person against whom the order is sought; or (c) a school administrator as defined in section eleven hundred twenty-five of the education law, or a school administrator's designee, of any school in which the person against whom the order is sought is currently enrolled or has been enrolled in the six months immediately preceding the filing of the petition. For purposes of this article, a school administrator's designee

177 shall be employed at the same school as the school administrator and shall be any of the following who has been designated in writing to file a petition with respect to the person against whom the order is sought: a school teacher, school guidance counselor, school psychologist, school social worker, school nurse, or other school personnel required to hold a teaching or administrative license or certificate, and full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate.

3. “Respondent” means the person against whom an extreme risk protection order is or may be sought under this article.

4. “Possess” shall have the same meaning as defined in subdivision eight of section 10.00 of the penal law.

§ 6341. Application for an extreme risk protection order

In accordance with this article, a petitioner may file an application, which shall be sworn, and accompanying supporting documentation, setting forth the facts and circumstances justifying the issuance of an extreme risk protection order. Such application and supporting documentation shall be filed in the supreme court in the county in which the respondent resides. The chief administrator of the courts shall adopt forms that may be used for purposes of such applications and the court's consideration of such applications. Such application form shall include inquiry as to whether the petitioner knows, or has reason to believe, that the respondent owns, possesses or has access to a firearm, rifle or shotgun and if so, a request that the petitioner list or describe such firearms, rifles and shotguns, and the respective locations thereof, with as much specificity as possible.

§ 6342. Issuance of a temporary extreme risk protection order

1. Upon application of a petitioner pursuant to this article, the court may issue a temporary extreme risk protection order, ex parte or otherwise, to prohibit the respondent from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun, upon a finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law. Such application for a temporary order shall be determined in writing on the same day the application is filed.

2. In determining whether grounds for a temporary extreme risk protection order exist, the court shall consider any relevant factors including, but not limited to, the following acts of the respondent:

(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

178 (b) a violation or alleged violation of an order of protection;

(c) any pending charge or conviction for an offense involving the use of a weapon;

(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;

(e) any history of a violation of an extreme risk protection order;

(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or

(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor.

In considering the factors under this subdivision, the court shall consider the time that has elapsed since the occurrence of such act or acts and the age of the person at the time of the occurrence of such act or acts.

For the purposes of this subdivision, “recent” means within the six months prior to the date the petition was filed.

3. The application of the petitioner and supporting documentation, if any, shall set forth the factual basis for the request and probable cause for issuance of a temporary order. The court may conduct an examination under oath of the petitioner and any witness the petitioner may produce.

4. A temporary extreme risk protection order, if warranted, shall issue in writing, and shall include:

(a) a statement of the grounds found for the issuance of the order;

(b) the date and time the order expires;

(c) the address of the court that issued the order;

(d) a statement to the respondent: (i) directing that the respondent may not purchase, possess or attempt to purchase or possess a firearm, rifle or shotgun while the order is in effect and that any firearm, rifle or shotgun possessed by such respondent shall be promptly surrendered to any authorized law enforcement official in the same manner as set forth in subdivision five of section 530.14 of the criminal procedure law;

(ii) informing the respondent that the court will hold a hearing no sooner than three nor more than six business days after service of the temporary order, to determine whether a final extreme risk protection order will be issued and the date, time and location of such hearing, provided that the

179 respondent shall be entitled to more than six days upon request in order to prepare for the hearing; and (iii) informing the respondent the he or she may seek the advice of an attorney and that an attorney should be consulted promptly; and

(e) a form to be completed and executed by the respondent at the time of service of the temporary extreme risk protection order which elicits a list of all firearms, rifles and shotguns possessed by the respondent and the particular location of each firearm, rifle or shotgun listed.

5. If the application for a temporary extreme risk protection order is not granted, the court shall notify the petitioner and, unless the application is voluntarily withdrawn by the petitioner, nonetheless schedule a hearing on the application for a final extreme risk protection order. Such hearing shall be scheduled to be held promptly, but in any event no later than ten business days after the date on which such application is served on the respondent, provided, however, that the respondent may request, and the court may grant, additional time to allow the respondent to prepare for the hearing. A notice of such hearing shall be prepared by the court and shall include the date and time of the hearing, the address of the court, and the subject of the hearing.

6. (a) The court shall, in the manner specified in paragraph (b) of this subdivision, arrange for prompt service of a copy of the temporary extreme risk protection order, if any, the application therefor and, if separately applied for or if a temporary extreme risk protection order was not granted, the application for an extreme risk protection order, any notice of hearing prepared by the court, along with any associated papers including the petition and any supporting documentation, provided, that the court may redact the address and contact information of the petitioner from such application and papers where the court finds that disclosure of such address or other contact information would pose an unreasonable risk to the health or safety of the petitioner.

(b) The court shall provide copies of such documents to the appropriate law enforcement agency serving the jurisdiction of the respondent's residence with a direction that such documents be promptly served, at no cost to the petitioner, on the respondent; provided, however, that the petitioner may voluntarily arrange for service of copies of such order and associated papers through a third party, such as a licensed process server.

7. (a) The court shall notify the division of state police, any other law enforcement agency with jurisdiction, all applicable licensing officers, and the division of criminal justice services of the issuance of a temporary extreme risk protection order and provide a copy of such order no later than the next business day after issuing the order to such persons or agencies. The court also shall promptly notify such persons and agencies and provide a copy of any order amending or revoking such protection order or restoring the respondent's ability to own or possess firearms, rifles or shotguns no later than the next business day after issuing the order to restore such right to the respondent. The court also shall report such demographic data as required by the state division of criminal justice services at the time such order is transmitted thereto. Any notice or report submitted pursuant to this subdivision shall be in an electronic format, in a manner prescribed by

180 the division of criminal justice services.

(b) Upon receiving notice of the issuance of a temporary extreme risk protection order, the division of criminal justice services shall immediately report the existence of such order to the federal bureau of investigation to allow the bureau to identify persons prohibited from purchasing firearms, rifles or shotguns. The division shall also immediately report to the bureau the expiration of any such protection order, any court order amending or revoking such protection order or restoring the respondent's ability to purchase a firearm, rifle or shotgun.

8. A law enforcement officer serving a temporary extreme risk protection order shall request that the respondent immediately surrender to the officer all firearms, rifles and shotguns in the respondent's possession and the officer shall conduct any search permitted by law for such firearms. The law enforcement officer shall take possession of all firearms, rifles and shotguns that are surrendered, that are in plain sight, or that are discovered pursuant to a lawful search. As part of the order, the court may also direct a police officer to search for firearms, rifles and shotguns in the respondent's possession in a manner consistent with the procedures of article six hundred ninety of the criminal procedure law.

9. Upon issuance of a temporary extreme risk protection order, or upon setting a hearing for a final extreme risk protection order where a temporary order is denied or not requested, the court shall direct the law enforcement agency having jurisdiction to conduct a background investigation and report to the court and, subject to any appropriate redactions to protect any person, each party regarding whether the respondent:

(a) has any prior criminal conviction for an offense involving domestic violence, use of a weapon, or other violence;

(b) has any criminal charge or violation currently pending against him or her;

(c) is currently on parole or probation;

(d) possesses any registered firearms, rifles or shotguns; and

(e) has been, or is, subject to any order of protection or has violated or allegedly violated any order of protection.

§ 6343. Issuance of a final extreme risk protection order

1. In accordance with this article, no sooner than three business days nor later than six business days after service of a temporary extreme risk protection order and, alternatively, no later than ten business days after service of an application under this article where no temporary extreme risk protection order has been issued, the supreme court shall hold a hearing to determine whether to

181 issue a final extreme risk protection order and, when applicable, whether a firearm, rifle or shotgun surrendered by, or removed from, the respondent should be returned to the respondent. The respondent shall be entitled to more than six business days if a temporary extreme risk protection order has been issued and the respondent requests a reasonable period of additional time to prepare for the hearing. Where no temporary order has been issued, the respondent may request, and the court may grant, additional time beyond the ten days to allow the respondent to prepare for the hearing.

2. At the hearing pursuant to subdivision one of this section, the petitioner shall have the burden of proving, by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law. The court may consider the petition and any evidence submitted by the petitioner, any evidence submitted by the respondent, any testimony presented, and the report of the relevant law enforcement agency submitted pursuant to subdivision nine of section sixty-three hundred forty-two of this article. The court shall also consider the factors set forth in subdivision two of section sixty-three hundred forty-two of this article.

3. (a) After the hearing pursuant to subdivision one of this section, the court shall issue a written order granting or denying the extreme risk protection order and setting forth the reasons for such determination. If the extreme risk protection order is granted, the court shall direct service of such order in the manner and in accordance with the protections for the petitioner set forth in subdivision six of section sixty-three hundred forty-two of this article.

(b) Upon issuance of an extreme risk protection order: (i) any firearm, rifle or shotgun removed pursuant to a temporary extreme risk protection order or such extreme risk protection order shall be retained by the law enforcement agency having jurisdiction for the duration of the order, unless ownership of the firearm, rifle or shotgun is legally transferred by the respondent to another individual permitted by law to own and possess such firearm, rifle or shotgun; (ii) the supreme court shall temporarily suspend any existing firearm license possessed by the respondent and order the respondent temporarily ineligible for such a license; (iii) the respondent shall be prohibited from purchasing or possessing, or attempting to purchase or possess, a firearm, rifle or shotgun; and (iv) the court shall direct the respondent to surrender any firearm, rifle or shotgun in his or her possession in the same manner as set forth in subdivision five of section 530.14 of the criminal procedure law.

(c) An extreme risk protection order issued in accordance with this section shall extend, as specified by the court, for a period of up to one year from the date of the issuance of such order; provided, however, that if such order was immediately preceded by the issuance of a temporary extreme risk protection order, then the duration of the extreme risk protection order shall be measured from the date of issuance of such temporary extreme risk protection order.

182 (d) A law enforcement officer serving a final extreme risk protection order shall request that the respondent immediately surrender to the officer all firearms, rifles and shotguns in the respondent's possession and the officer shall conduct any search permitted by law for such firearms. The law enforcement officer shall take possession of all firearms, rifles and shotguns that are surrendered, that are in plain sight, or that are discovered pursuant to a lawful search. As part of the order, the court may also direct a police officer to search for firearms, rifles and shotguns in a respondent's possession consistent with the procedures of article six hundred ninety of the criminal procedure law.

4. (a) The court shall notify the division of state police, any other law enforcement agency with jurisdiction, all applicable licensing officers, and the division of criminal justice services of the issuance of a final extreme risk protection order and provide a copy of such order to such persons and agencies no later than the next business day after issuing the order. The court also shall promptly notify such persons and agencies and provide a copy of any order amending or revoking such protection order or restoring the respondent's ability to own or possess firearms, rifles or shotguns no later than the next business day after issuing the order to restore such right to the respondent. Any notice or report submitted pursuant to this subdivision shall be in an electronic format, in a manner prescribed by the division of criminal justice services.

(b) Upon receiving notice of the issuance of a final extreme risk protection order, the division of criminal justice services shall immediately report the existence of such order to the federal bureau of investigation to allow the bureau to identify persons prohibited from purchasing firearms, rifles or shotguns. The division shall also immediately report to the bureau the expiration of such protection order and any court order amending or revoking such protection order or restoring the respondent's ability to purchase a firearm, rifle or shotgun.

5. (a) If, in accordance with a temporary extreme risk protection order, a firearm, rifle or shotgun has been surrendered by or removed from the respondent, and the supreme court subsequently finds that the petitioner has not met the required standard of proof, the court's finding shall include a written order, issued to all parties, directing that any firearm, rifle or shotgun surrendered or removed pursuant to such temporary order shall be returned to the respondent, upon a written finding that there is no legal impediment to the respondent's possession of such firearm, rifle or shotgun.

(b) If any other person demonstrates that he or she is the lawful owner of any firearm, rifle or shotgun surrendered or removed pursuant to a protection order issued in accordance with this article, and provided that the court has made a written finding that there is no legal impediment to the person's possession of a surrendered or removed firearm, rifle or shotgun, the court shall direct that such firearm, rifle or shotgun be returned to such lawful owner and inform such person of the obligation to safely store such firearm, rifle, or shotgun in accordance with section 265.45 of the penal law.

183 6. The respondent shall be notified on the record and in writing by the court that he or she may submit one written request, at any time during the effective period of an extreme risk protection order, for a hearing setting aside any portion of such order. The request shall be submitted in substantially the same form and manner as prescribed by the chief administrator of the courts. Upon such request, the court shall promptly hold a hearing, in accordance with this article, after providing reasonable notice to the petitioner. The respondent shall bear the burden to prove, by clear and convincing evidence, any change of circumstances that may justify a change to the order.

§ 6344. Surrender and removal of firearms, rifles and shotguns pursuant to an extreme risk protection order

1. When a law enforcement officer takes any firearm, rifle or shotgun pursuant to a temporary extreme risk protection order or a final extreme risk protection order, the officer shall give to the person from whom such firearm, rifle or shotgun is taken a receipt or voucher for the property taken, describing the property in detail. In the absence of a person, the officer shall leave the receipt or voucher in the place where the property was found, mail a copy of the receipt or voucher, retaining proof of mailing, to the last known address of the respondent and, if different, the owner of the firearm, rifle or shotgun, and file a copy of such receipt or voucher with the court. All firearms, rifles and shotguns in the possession of a law enforcement official pursuant to this article shall be subject to the provisions of applicable law, including but not limited to subdivision six of section 400.05 of the penal law; provided, however, that any such firearm, rifle or shotgun shall be retained and not disposed of by the law enforcement agency for at least two years unless legally transferred by the respondent to an individual permitted by law to own and possess such firearm, rifle or shotgun.

2. If the location to be searched during the execution of a temporary extreme risk protection order or extreme risk protection order is jointly occupied by two or more parties, and a firearm, rifle or shotgun located during the execution of such order is owned by a person other than the respondent, the court shall, upon a written finding that there is no legal impediment to the person other than the respondent's possession of such firearm, rifle or shotgun, order the return of such firearm, rifle or shotgun to such lawful owner and inform such person of their obligation to safely store their firearm, rifle, or shotgun in accordance with section 265.45 of the penal law.

§ 6345. Request for renewal of an extreme risk protection order

1. If a petitioner believes a person subject to an extreme risk protection order continues to be likely to engage in conduct that would result in serious harm to himself, herself, or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law, such petitioner may, at any time within sixty days prior to the expiration of such existing extreme risk protection order, initiate a request for a renewal of such order, setting forth the facts and circumstances necessitating the request. The chief administrator of the courts shall adopt forms that may be used for purposes of such applications and the court's consideration of such

184 applications. The court may issue a temporary extreme risk protection order in accordance with section sixty-three hundred forty-two of this article, during the period that a request for renewal of an extreme risk protection order is under consideration pursuant to this section.

2. A hearing held pursuant to this section shall be conducted in the supreme court, in accordance with section sixty-three hundred forty-three of this article, to determine if a request for renewal of the order shall be granted. The respondent shall be served with written notice of an application for renewal a reasonable time before the hearing, and shall be afforded an opportunity to fully participate in the hearing. The court shall direct service of such application and the accompanying papers in the manner and in accordance with the protections for the petitioner set forth in subdivision six of section sixty-three hundred forty-two of this article.

§ 6346. Expiration of an extreme risk protection order

1. A protection order issued pursuant to this article, and all records of any proceedings conducted pursuant to this article, shall be sealed upon expiration of such order and the clerk of the court wherein such proceedings were conducted shall immediately notify the commissioner of the division of criminal justice services, the heads of all appropriate police departments, applicable licensing officers, and all other appropriate law enforcement agencies that the order has expired and that the record of such protection order shall be sealed and not be made available to any person or public or private entity, except that such records shall be made available to:

(a) the respondent or the respondent's designated agent;

(b) courts in the unified court system;

(c) police forces and departments having responsibility for enforcement of the general criminal laws of the state;

(d) any state or local officer or agency with responsibility for the issuance of licenses to possess a firearm, rifle or shotgun, when the respondent has made application for such a license; and

(e) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the criminal procedure law, in relation to an application for employment as a police officer or peace officer; provided, however, that every person who is an applicant for the position of police officer or peace officer shall be furnished with a copy of all records obtained under this subparagraph and afforded an opportunity to make an explanation thereto.

2. Upon expiration of a protection order issued pursuant to this article and upon written application of the respondent who is the subject of such order, with notice and opportunity to be heard to the petitioner and every licensing officer responsible for issuance of a firearm license to

185 the subject of the order pursuant to article four hundred of the penal law, and upon a written finding that there is no legal impediment to the respondent's possession of a surrendered firearm, rifle or shotgun, the court shall order the return of a firearm, rifle or shotgun not otherwise disposed of in accordance with subdivision one of section sixty-three hundred forty-four of this article. When issuing such order in connection with any firearm subject to a license requirement under article four hundred of the penal law, if the licensing officer informs the court that he or she will seek to revoke the license, the order shall be stayed by the court until the conclusion of any license revocation proceeding.

§ 6347. Effect of findings and determinations in subsequent proceedings

Notwithstanding any contrary claim based on common law or a provision of any other law, no finding or determination made pursuant to this article shall be interpreted as binding, or having collateral estoppel or similar effect, in any other action or proceeding, or with respect to any other determination or finding, in any court, forum or administrative proceeding.

V. MISCELLANEOUS LEGISLATION

SHOCK AMENDMENTS

Section 1. Paragraphs (d) and (e) of subdivision 1-a of section 70.15 of the penal law, as added by section 2 of part OO of a chapter of the laws of 2019 amending the penal law and the criminal procedure law relating to reducing certain sentences of imprisonment for misdemeanors to three hundred sixty-four days, as proposed in legislative bill numbers S.1505-C and A.2005-C, are amended to read as follows:

(d) Any sentence for a misdemeanor conviction imposed prior to the effective date of this subdivision that is other than a definite sentence of imprisonment of one year may be set aside, upon motion of the defendant under section 440.20 of the criminal procedure law based on a showing that the judgment and sentence under the law in effect at the time of conviction imposed prior to the effective date of this subdivision is likely to result in severe collateral consequences, in order to permit the court to resentence the defendant in accordance with the amendatory provisions of this subdivision.

(e) Resentence by operation of law is without prejudice to an individual seeking further relief pursuant to paragraph (i) (j) of subdivision one of section 440.10 of the criminal procedure law. Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the individual.

§ 2. Paragraph (j) of subdivision 1 of section 440.10 of the criminal procedure law, as added by section 3 of part OO of a chapter of the laws of 2019 amending the penal law and the criminal procedure law relating to reducing certain sentences of imprisonment for misdemeanors to three

186 hundred sixty-four days, as proposed in legislative bill numbers S.1505-C and A.2005-C, is amended to read as follows:

(j) The judgment is a conviction for a class A or unclassified misdemeanor entered prior to the effective date of this paragraph and satisfies the ground prescribed in paragraph (h) of this subdivision. There shall be a rebuttable presumption that a conviction by plea to such an offense was not knowing, voluntary and intelligent, based on severe or ongoing collateral consequences, including potential or actual immigration consequences, and there shall be a rebuttable presumption that a conviction by verdict constitutes cruel and unusual punishment under section five of article one of the state constitution based on such consequences.

FORFEITURE

Section 1. The opening paragraph and paragraph (a) of subdivision 1 of section 1311 of the civil practice law and rules, the opening paragraph as amended by chapter 655 of the laws of 1990 and paragraph (a) as added by chapter 669 of the laws of 1984, are amended to read as follows:

A civil action may be commenced by the appropriate claiming authority against a criminal defendant to recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime or the real property instrumentality of a crime or to recover a money judgment in an amount equivalent in value to the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime, or the real property instrumentality of a crime. A civil action may be commenced against a non-criminal defendant to recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime, or the real property instrumentality of a crime provided, however, that a judgment of forfeiture predicated upon clause

(A) of subparagraph (iv) of paragraph (b) of subdivision three hereof of this section shall be limited to the amount of the proceeds of the crime. Any action under this article must be commenced within five years of the commission of the crime and shall be civil, remedial, and in personam in nature and shall not be deemed to be a penalty or criminal forfeiture for any purpose. Except as otherwise specially provided by statute, the proceedings under this article shall be governed by this chapter. An action under this article is not a criminal proceeding and may not be deemed to be a previous prosecution under article forty of the criminal procedure law.

(a) Actions relating to post-conviction forfeiture crimes. An action relating to a post-conviction forfeiture crime must be grounded upon a conviction of a felony defined in subdivision five of section one thousand three hundred ten of this article, or upon criminal activity arising from a common scheme or plan of which such a conviction is a part, or upon a count of an indictment or information alleging a felony which was dismissed at the time of a plea of guilty to a felony in satisfaction of such count. A court may not grant forfeiture until such conviction has occurred.

187 However, an action may be commenced, and a court may grant a provisional remedy provided under this article, prior to such conviction having occurred. An action under this paragraph must be dismissed at any time after sixty days of the commencement of the action unless the conviction upon which the action is grounded has occurred, or an indictment or information upon which the asserted conviction is to be based is pending in a superior court. An action under this paragraph shall be stayed during the pendency of a criminal action which is related to it; provided, however, that such stay shall not prevent the granting or continuance of any provisional remedy provided under this article or any other provisions of law.

§ 2. The civil practice law and rules is amended by adding a new section 1311-b to read as follows:

§ 1311-b. Money judgment. If a claiming authority obtains a forfeiture judgment against a defendant for the proceeds, substituted proceeds, instrumentality of a crime or real property instrumentality of a crime, but is unable to locate all or part of any such property, the claiming authority may apply to the court for a money judgment against the defendant in the amount of the value of the forfeited property that cannot be located. The defendant shall have the right to challenge the valuation of any property that is the basis for such an application. The claiming authority shall have the burden of establishing the value of the property under this section by a preponderance of the evidence.

§ 3. Subdivisions 1, 3 and 4 of section 1312 of the civil practice law and rules, subdivision 1 as added by chapter 669 of the laws of 1984, subdivision 3 as amended and subdivision 4 as added by chapter 655 of the laws of 1990, are amended to read as follows:

1. The provisional remedies of attachment, injunction, receivership and notice of pendency provided for herein, shall be available in all actions to recover property or for a money judgment under this article.

3. A court may grant an application for a provisional remedy when it determines that: (a) there is a substantial probability that the claiming authority will be able to demonstrate at trial that the property is the proceeds, substituted proceeds, instrumentality of the crime or real property instrumentality of the crime, that the claiming authority will prevail on the issue of forfeiture, and that failure to enter the order may result in the property being destroyed, removed from the jurisdic- tion of the court, or otherwise be unavailable for forfeiture; (b) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order may operate; and (c) in an action relating to real property, that entry of the requested order will not substantially diminish, impair, or terminate the lawful property interest in such real property of any person or persons other than the defendant or defendants.

4. Upon motion of any party against whom a provisional remedy granted pursuant to this article is in effect, the court may issue an order modifying or vacating such provisional remedy if necessary

188 to permit the moving party to obtain funds for the payment of reasonable living expenses, other costs or expenses related to the maintenance, operation, or preservation of property which is the subject of any such provisional remedy or reasonable and bona fide attorneys' fees and expenses for the representation of the defendant in the forfeiture proceeding or in a related criminal matter relating thereto, payment for which is not otherwise available from assets of the defendant which are not subject to such provisional remedy. Any such motion shall be supported by an affidavit establishing the unavailability of other assets of the moving party which are not the subject of such provisional remedy for payment of such expenses or fees. That funds sought to be released under this subdivision are alleged to be the proceeds, substituted proceeds, instrumentality of a crime or real property instrumentality of a crime shall not be a factor for the court in considering and determining a motion made pursuant to this subdivision.

§ 4. The opening paragraph of subdivision 2 of section 1349 of the civil practice law and rules, as added by chapter 655 of the laws of 1990, is amended to read as follows:

If any other provision of law expressly governs the manner of disposition of property subject to the judgment or order of forfeiture, that provision of law shall be controlling, with the exception that, notwithstanding the provisions of any other law, all forfeited monies and proceeds from forfeited property shall be deposited into and disbursed from an asset forfeiture escrow fund established pursuant to section six-v of the general municipal law, which shall govern the maintenance of such monies and proceeds from forfeited property. Upon application by a claiming agent for reimbursement of moneys directly expended by a claiming agent in the underlying criminal investigation for the purchase of contraband which were converted into a non-monetary form or which have not been otherwise recovered, the court shall direct such reimbursement from money forfeited pursuant to this article. Upon application of the claiming agent, the court may direct that any vehicles, vessels or aircraft forfeited pursuant to this article be retained by the claiming agent for law enforcement purposes, unless the court determines that such property is subject to a perfected lien, in which case the court may not direct that the property be retained unless all such liens on the property to be retained have been satisfied or pursuant to the court's order will be satisfied. In the absence of an application by the claiming agent, the claiming authority may apply to the court to retain such property for law enforcement purposes. Upon such application, the court may direct that such property be retained by the claiming authority for law enforcement purposes, unless the court determines that such property is subject to a perfected lien. If not so retained, the judgment or order shall direct the claiming authority to sell the property in accordance with article fifty-one of this chapter, and that the proceeds of such sale and any other moneys realized as a consequence of any forfeiture pursuant to this article shall be deposited to an asset forfeiture escrow fund established pursuant to section six-v of the general municipal law and shall be apportioned and paid in the following descending order of priority:

§ 5. Section 1349 of the civil practice law and rules is amended by adding a new subdivision 5 to read as follows:

189 5. Monies and proceeds from the sale of property realized as a consequence of any forfeiture distributed to the claiming agent or claiming authority of any county, town, city, or village of which the claiming agent or claiming authority is a part, shall be deposited to an asset forfeiture escrow fund established pursuant to section six-v of the general municipal law.

§ 6. Subdivision 2 of section 700 of the county law is amended to read as follows:

2. Within thirty days after the receipt of any fine, penalty, recovery upon any recognizance, monies and proceeds from the sale of property realized as a consequence of any forfeiture, or other money belonging to the county, the district attorney or the claiming authority shall pay the same to the county treasurer. Not later than the first day of February in each year, the district attorney shall make in duplicate a verified true statement of all such moneys received and paid to the county treasurer during the preceding calendar year and at that time shall pay to the county treasurer any balance due. One statement shall be furnished to the county treasurer and the other, one to the clerk of the board of supervisors and one to the state comptroller. A district attorney who is not re-elected shall make and file the verified statement and pay any balance of such moneys to the county treasurer within thirty days after the expiration of his term.

§ 7. The general municipal law is amended by adding a new section 6-v to read as follows:

§ 6-v. Asset forfeiture escrow fund. 1. As used in this section: a. The term "governing board", insofar as it is used in reference to a village, shall mean the board of trustees thereof; insofar as it is used in reference to a town, shall mean the town board thereof; insofar as it is used in reference to a county, shall mean the board of supervisors or the county legislature thereof, as applicable; insofar as it is used in reference to a city, shall mean the "legislative body" thereof, as that term is defined in subdivision seven of section two of the municipal home rule law. b. The term "chief fiscal officer" shall mean: (i) In the case of counties operating under (1) an alternative form of county government or charter enacted as a state statute or adopted under the alternative county government law or by local law, the official designated in such statute, consolidated law or local law as the chief fiscal officer, or, if no such designation is made therein, the official possessing powers and duties similar to those of a county treasurer under the county law as shall be designated by local law.

(2) In the case of counties not operating under an alternative form of county government or charter enacted as a state statute or adopted under the alternative county government law or by local law, the treasurer, except that, in the case of counties having a comptroller, it shall mean the comptroller.

(ii) In the case of cities, the comptroller; if a city does not have a comptroller, the treasurer; if a

190 city has neither a comptroller nor a treasurer, such official possessing powers and duties similar to those of a city treasurer as the finance board shall, by resolution, desig- nate. A certified copy of such designation shall be filed with the state comptroller and shall be a public record.

(iii) In the case of towns, the town supervisor; if a town has more than one supervisor, the presiding supervisor.

(iv) In the case of villages, the village treasurer. c. The term "claiming authority" shall mean the district attorney having jurisdiction over the offense or the attorney general for purpose of those crimes for which the attorney general has criminal jurisdiction in a case where the underlying criminal charge has been, is being or could have been brought by the attorney general, or the appropriate corporation counsel or county attorney, where such corporation counsel or county attorney may act as a claiming authority only with the consent of the district attorney or the attorney general, as appropriate. d. The term "claiming agent" shall mean and shall include all persons described in subdivision thirty-four of section 1.20 of the criminal procedure law, and sheriffs, undersheriffs and deputy sheriffs of counties within the city of New York.

2. The governing board shall authorize the establishment of an asset forfeiture escrow fund for any claiming agent or claiming authority as is deemed necessary for the monies and proceeds of sale of property realized as a consequence of any forfeiture. The separate identity of such fund shall be maintained.

3. There shall be paid into the asset forfeiture escrow fund all proceeds realized as a consequence of any forfeiture action. Such funds shall include, but are not limited to, all funds and any property (real, personal, tangible and/or intangible) that are forfeited pursuant to agreement or otherwise prior to, in lieu of or after the lodging of criminal charges, pre-indictment, post-indictment, or after conviction by plea or trial. Such funds shall also include funds that are forfeited in compromise of charges that are never brought.

4. The monies and proceeds in the asset forfeiture escrow fund shall be deposited and secured in the manner provided by section ten of this article. All monies and proceeds so deposited in such fund shall be kept in a separate bank account. The chief fiscal officer may invest the moneys in such fund in the manner provided in section eleven of this article. Any interest earned or capital gains realized on the moneys so deposited or invested shall accrue to and become part of such fund. The separate identity of such fund shall be maintained, whether its assets consist of cash, investments, or both.

5. Every claim for the payment of money from the asset forfeiture escrow fund shall specify the purpose of the requested payment and must be accompanied by a written certification that the

191 expenditure is in compliance with all applicable laws. Payments from such fund shall be made by the chief fiscal officer subject to the required certification and the determination of fund sufficiency.

6. The chief fiscal officer, at the termination of each fiscal year, shall render a detailed report of the operation and condition of the asset forfeiture escrow fund to the governing board and the state comptroller. Such report shall be subject to examination and audit. The chief fiscal officer may account for such fund separate and apart from all other funds of the village, town, county, and city.

§ 8. Section 1352 of the civil practice law and rules, as added by chapter 669 of the laws of 1984, is amended to read as follows:

§ 1352. Preservation of other rights and remedies. The remedies provided for in this article are not intended to substitute for or limit or supercede supersede the lawful authority of any public officer or agency or other person to enforce any other right or remedy provided for by law. The exercise of such lawful authority in the forfeiture of property alleged to be the proceeds, substitute proceeds, instrumentality of a crime or real property instrumentality of crime must include the provision of a prompt opportunity to be heard for the owner of seized property in order to ensure the legitimacy and the necessity of its continued retention by law enforcement, as well as clear notice of dead- lines for accomplishing the return of such property.

§ 9. Subdivision 11 of section 1311 of the civil practice law and rules is amended by adding a new paragraph (d) to read as follows:

(d) Any stipulation, settlement agreement, judgement, order or affidavit required to be given to the state division of criminal justice services pursuant to this subdivision shall include the defendant's name and such other demographic data as required by the state division of criminal justice services.

§ 10. Subdivision 6 of section 220.50 of the criminal procedure law, as added by chapter 655 of the laws of 1990, is amended to read as follows:

6. Where the defendant consents to a plea of guilty to the indictment, or part of the indictment, or consents to be prosecuted by superior court information as set forth in section 195.20 of this chapter, and if the defendant and prosecutor agree that as a condition of the plea or the superior court information certain property shall be forfeited by the defendant, the description and present estimated monetary value of the property shall be stated in court by the prosecutor at the time of plea. Within thirty days of the acceptance of the plea or superior court information by the court, the prosecutor shall send to the commissioner of the division of criminal justice services a document containing the name of the defendant, the description and present estimated monetary value of the property, any other demographic data as required by the division of criminal justice

192 services and the date the plea or superior court information was accepted. Any property forfeited by the defendant as a condition to a plea of guilty to an indictment, or a part thereof, or to a superior court information, shall be disposed of in accordance with the provisions of section thirteen hundred forty-nine of the civil practice law and rules.

§ 11. Subdivision 4 of section 480.10 of the penal law, as added by chapter 655 of the laws of 1990, is amended to read as follows:

4. The prosecutor shall promptly file a copy of the special forfeiture information, including the terms thereof, with the state division of criminal justice services and with the local agency responsible for criminal justice planning. Failure to file such information shall not be grounds for any relief under this chapter. The prosecutor shall also report such demographic data as required by the state division of criminal justice services when filing a copy of the special forfeiture information with the state division of criminal justice services.

§ 12. This act shall take effect on the one hundred eightieth day after it shall have become a law and shall apply to crimes which were committed on or after such date.

SHOCK

Section 1. Section 60.05 of the penal law is amended by adding a new subdivision 8 to read as follows:

8. Shock incarceration participation. (a) When the court imposes a determinate sentence of imprisonment pursuant to subdivision three of section 70.02 of this chapter or subdivision six of section 70.06 of this chapter upon a person who stands convicted either of burglary in the second degree as defined in subdivision two of section 140.25 of this chapter or robbery in the second degree as defined in subdivision one of section 160.10 of this chapter, or an attempt thereof, upon motion of the defendant, the court may issue an order directing that the department of corrections and community supervision enroll the defendant in the shock incarceration program as defined in article twenty-six-A of the correction law, provided that the defendant is an eligible inmate, as described in subdivision one of section eight hundred sixty-five of the correction law. Notwithstanding the foregoing provisions of this subdivision, any defendant to be enrolled in such program pursuant to this subdivision shall be governed by the same rules and regulations promulgated by the department of corrections and community supervision, including without limitation those rules and regulations establishing requirements for completion and such rules and regulations governing discipline and removal from the program.

(b) Paragraph (b) of subdivision seven of section 60.04 of this article shall apply in the event an inmate designated by court order for enrollment in the shock incarceration program requires a degree of medical care or mental health care that cannot be provided at a shock incarceration facility.

193 § 2. Subdivision 1 of section 865 of the correction law, as amended by chapter 377 of the laws of 2010, is amended to read as follows:

1. "Eligible inmate" means a person sentenced to an indeterminate term of imprisonment who will become eligible for release on parole within three years or sentenced to a determinate term of imprisonment who will become eligible for conditional release within three years, who has not reached the age of fifty years, who has not previously been convicted of a violent felony as defined in article seventy of the penal law, or a felony in any other jurisdiction which includes all of the essential elements of any such violent felony, upon which an indeterminate or determinate term of imprisonment was imposed and who was between the ages of sixteen and fifty years at the time of commission of the crime upon which his or her present sentence was based. Notwithstanding the foregoing, no person who is convicted of any of the following crimes shall be deemed eligible to participate in this program: (a) a violent felony offense as defined in article seventy of the penal law,; provided, however, that a person who is convicted of burglary in the second degree as defined in subdivision two of section 140.25 of the penal law, or robbery in the second degree as defined in subdivision one of section 160.10 of the penal law, or an attempt thereof, is eligible to participate, (b) an A-I felony offense, (c) any homicide offense as defined in article one hundred twenty-five of the penal law, (d) any felony sex offense as defined in article one hundred thirty of the penal law and (e) any escape or absconding offense as defined in article two hundred five of the penal law.

§ 3. This act shall take effect on the thirtieth day after it shall have become a law.

10/8/19

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