In today’s New York Criminal Caselaw Roundup we’ll be discussing the latest in developments of New York criminal law, criminal appeals, and post-conviction relief.

Cases that we’ll cover include Leaving the Scene of an Accident Without Reporting, Driving While Ability Impaired, Driving While Intoxicated, DWI, severance, identity, Burglary in the Second Degree, Criminal Mischief in the Third Degree, Petit Larceny, theory of prosecution, Louis Scarcella, 440 motion, post conviction relief, newly discovered evidence, sealing, and more.

The New York Criminal Caselaw Roundup is a blog and video podcast by criminal defense and appeals lawyers Jason L. Russo and Steven J. Gaitman summarizing the latest developments in criminal law, criminal appeals, and post-conviction relief in the State of New York.  Each week we digest the latest reversed convictions throughout the New York Appellate Divisions and the New York Court of Appeals, as well as the United States Court of Appeals and the United States Supreme Court.

This is a FREE service designed to give you the cutting edge of developments in New York criminal law, appeals, and post-conviction relief.

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COURT OF APPEALS

No decisions reported.

FIRST DEPARTMENT

CLICK TO READ People v. James Santiago, Docket # 2015-01259 (2021 NY Slip Op 00130)

Conviction after a joint trial of Leaving the Scene of an Accident Without Reporting and Driving While Ability Impaired, reversed, case remanded for new separate trials on each count.

The Leaving the Scene of an Accident Without Reporting was based on a September 4, 2011 incident in which a person was run over while lying on the road, killing him.  The incident was captured on video surveillance, and Defendant was the registered owner of the car that ran over the victim and kept traveling.  The DWAI conviction was based on an incident that occurred 4 months later.

At trial, the police officer who arrested Defendant for DWI was permitted to testify relative to the charge of leaving the scene that he recognized the vehicle and driver in the video and stills taken from the first incident as the same car and person he stopped in the second incident.

Prior to trial, Defendant moved to sever the two counts based on the fact that they were based on different incidents or transactions, and the motion was denied. 

The First Department reversed, finding that none of the proof necessary for each offense was material to the other.  The witnesses, locations, and dates of the two crimes were completely unrelated. The People did not need the arresting officer in the DWI charge to identify defendant in video and stills, which were only part of the earlier investigation.  While certain evidence may be material and admissible to prove a defendant’s identity in joint trials that was not the case here. The images could have been presented directly to the jury for them to determine if defendant was the same person depicted therein. Significantly, there were no claims made by the People that by the time of trial defendant had changed his appearance and the officer was more likely to correctly identify the person depicted in the images than was the jury.

Severance granted, two new trials ordered.

SECOND DEPARTMENT

CLICK TO READ People v. Eliseo DeLeon, Docket # 2019-14650

People’s appeal of an order granting the Defendant’s 440 motion to vacate a 1996 conviction of Murder in the Second Degree, order affirmed, new trial ordered.

Defendant moved to vacate his conviction based on newly-discovered evidence that disgraced former NYPD Detectives Louis Scarcella and Steven Chmil, both of whom played a significant role in the Defendant’s arrest and the attendant police investigation in this case, had subsequently been found to have engaged in corrupt police practices and misconduct during the same period of time, which had resulted in the vacatur of other convictions in other cases.

Contrary to the People’s contention, the record supports the court’s finding that, based on Scarcella’s and Chmil’s significant involvement in the case, newly discovered evidence of their misconduct would have furnished the jury with a different context in which to view all of the evidence in this case, including the Defendant’s purported inculpatory statement made to these detectives which the defendant has denied making, and further, that evidence of their misconduct was of such a character to create a probability that, had such evidence been received at trial, the verdict would have been more favorable to the Defendant.

Order affirmed.

CLICK TO READ People v. Gary Petersen, Docket # 2017-01801

Appeal of a conviction after jury trial of two counts of Burglary in the Second Degree, Criminal Mischief in the Third Degree, Petit Larceny; Burglary convictions vacated and new trial ordered on those counts only.

Defendant was indicted for allegedly entering a rooming house, damaging two doors and stealing surveillance cameras.  The Indictment and the Bill of Particulars specified a theory of prosecution that Defendant had the intent to commit property damage and/or theft.  At trial, the court permitted the prosecutor to argue in summation that Defendant intended to assault the complainant, changing the theory of prosecution.  Defense counsel preserved this issue by repeated timely objections and a motion for a mistrial.

The Second Department reversed, finding that because there was evidence supporting this uncharged theory of burglary, it is impossible to determine whether the verdict of guilty was founded on the uncharged theory, and harmless error analysis does not apply.

Affirmed in part, reversed in part.

THIRD DEPARTMENT

CLICK TO READ People v. Thomas Decker, Docket # 530281

Appeal of an order denying a motion to seal a criminal conviction pursuant to CPL § 160.59; order reversed, new hearing ordered.

Defendant pled guilty in 2006 and received a sentence of 6 months jail plus 5 years of probation.  In 2019, he moved to seal his conviction.  A hearing was held, at which Defendant testified and presented evidence.  The court gave the parties until the following Friday to submit additional argument and any other information they wanted to consider, and the defense stated it was going to submit more information.  Then the court denied the motion prior to that Friday without informing the parties prior or giving them the opportunity to supplement their submissions.

The Third Department reversed and remanded to give the defense the opportunity to submit additional evidence.

FOURTH DEPARTMENT

No cases reported.

SECOND CIRCUIT

No reversals reported.

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Leaving the Scene of an Accident Without Reporting, Driving While Ability Impaired, Driving While Intoxicated, DWI, severance, identity, Burglary in the Second Degree, Criminal Mischief in the Third Degree, Petit Larceny, theory of prosecution, Louis Scarcella, 440 motion, post conviction relief, newly discovered evidence, sealing