COURT OF APPEALS

No decisions reported

FIRST DEPARTMENT

CLICK TO READ People v. JC Hernandez-Molina, Docket # 2020-00110

Defendant was convicted after a jury trial of Criminal Possession of a Weapon in the Second Degree, Reckless Endangerment in the Second Degree, and sentenced to 5 years imprisonment.  Prior to trial, he requested a new attorney but the court denied his request for new counsel without making any inquiry into the reasons for his request and without giving Defendant any opportunity to explain the basis for his request.  The Court held that it did not matter that the request was raised shortly before jury selection, and reversed and remanded for a new trial.

CLICK TO READ People v. Ernest Adams, Docket # 2018-4729

Defendant was adjudicated a Level Three Sexually Violent Offender after the People moved to reopen the SORA hearing.  Originally, Defendant was convicted of Criminal Sexual Act in the First Degree, Robbery in the First Degree, Burglary in the First Degree, and Sexual Abuse in the First Degree.  At the SORA hearing, the trial court initially ruled that Defendant was a Level Two Sex Offender after reducing his Risk Assessment by 20 points after Defendant demonstrated that he knew the victim and that she was not a stranger.  After the hearing, the People filed a motion to reconsider and argued that Defendant and the victim were strangers and that as a result, the 20 additional points would render him a Level Three Sex Offender.  Attached to the motion were Grand Jury minutes, an NYPD police report, and handwritten statements by the Defendant, none of which had been presented earlier.  The court relied on the new materials and added back the 20 points, ruling Defendant was a Level Three Sex Offender.

The First Department reversed, finding that the motion to renew was improperly granted.  A court may grant a motion for leave to renew only where (1) the motion alleges new facts and (2) the movant provides reasonable justification for not offering those facts in the original proceedings.  Here, the People did not assert any reasonable justification for having failed to present their new evidence earlier.  Moreover, the People were not reasonably justified because the unfavorable SORA decision was a result of their failure to act. The People had the information in their possession before the hearing, were aware of defendant’s argument, and the motion court gave the People ample time to respond to defendant’s argument.

Order reversed, Defendant adjudicated a Level Two Sex Offender.

SECOND DEPARTMENT

No reversals reported.

THIRD DEPARTMENT

CLICK TO READ In the Matter of Andrea Canning v. Frank B. Revoir, Jr., Docket # CV-23-1000

Proceeding pursuant to CPLR Article 78 to prohibit respondent County Judge of Chenango County from enforcing a subpoena requiring petitioner to testify in a criminal trial.  In 2014, petitioner, an investigative journalist for the NBC News, conducted an interview of respondent Ganesh Ramsaran as he was awaiting trial for the murder of his wife.  During the interview, he denied killing his wife.  He was convicted after trial, but his conviction was later vacated upon a successful 440 motion and a new trial was ordered. 

In preparation for the new trial, respondent People of the State of New York

served a subpoena on petitioner, seeking to have her testify at trial in connection with her interview of Ramsaran. Petitioner filed a motion to quash the subpoena rguing that the information sought was protected by the qualified immunity for journalists under Civil Rights Law § 79-h (c), which was opposed by the People.  The court denied the motion to quash, and Petitioner commenced this Article 78 proceeding, seeking a seeking a writ of prohibition preventing respondent from enforcing the subpoena or from holding her in contempt for refusing to testify.

In order to overcome the privilege of the Journalist Shield, the People must make a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source.  The People failed to make the showing here.  The writ of prohibition was granted, and the subpoena quashed.

FOURTH DEPARTMENT

CLICK TO READ People v. Aaron D. Johnson, Docket # KA 19-02251

Defendant pled guilty to Criminal Possession of a Weapon in the Second Degree after his motion to suppress physical evidence was denied.  After a 911 caller reported a black male in an orange jacket had threatened him with a gun, but did not identify himself, two police officers responded and saw three black men, two of whom were on bicycles, and one of the cyclists was wearing an orange jacket.  One officer exited his car and ordered the men at gunpoint to show their hands.  Defendant held up his hands but then started to ride away, ignoring the officers’ orders to stop.  During the pursuit he took off his jacket and threw it to the ground, and police found a .38 caliber revolver in it.

The Fourth Department reversed the denial of suppression, ruling that the 911 caller, who gave only his first name and no other identifying information, was an anonymous caller.  The gunpoint stop and subsequent pursuit were illegal because they were not based on reasonable suspicion.  Suppression granted, indictment dismissed.

CLICK TO READ People v. Marcus Currington, Docket # KA 22-00807

Appeal of an order adjudicating Defendant a Level 2 Sex Offender, order reversed, Defendant adjudicated a Level 1 Sex Offender.  At the SORA hearing, Defendant was assessed 15 points for Risk Factor 11 for drug use based on his history of anabolic steroid use.  The Fourth Department held that the the People failed to prove by the requisite clear and convincing evidence that defendant had a history of substance abuse at the time of the offense.  Although he had a prior military conviction for possession of testosterone and steroids, that offense occurred approximately 1 year after the underlying sex offense.  There was no evidence that Defendant abused steroids at the time of the sex offense.  Order reversed.