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 Speedy Trial, Certificate of Readiness, Assault in the Second Degree, self-defense, justification, Obstruction of Justice, Witness Tampering, Federal Sentencing Guidelines Probable Cause, Preliminary Hearing, 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. Karilie Herrera, Docket # 2017-02109 (2021 NY Slip Op 01148)

Appeal of a conviction after jury trial of Assault in the Second Degree, conviction reversed, new trial ordered.

Defendant got into a fight with the complainant outside of a restaurant, and two other people jumped in on the complainant’s side and attacked Defendant with a liquor bottle and a shoe.  Defendant was cut on the process.  She was originally charged with Attempted Assault in the First Degree and Assault in the Second Degree, and testified that she was defending herself at trial.  The trial court instructed the jury on justification (self-defense) but did not instruct the jury that an acquittal of the greater charge of Attempted Assault in the First Degree on the basis of justification precluded consideration of the lesser included offense of Assault in the Second Degree. 

During deliberations, the jury submitted a note asking, “[w]e would like to understand why the defendant is pleading self-defense in the first two counts.” The court instructed the jury that it was up to them to determine whether defendant had committed the acts alleged in counts one and two and “it is also for [the jury] to determine whether [defendant] was justified.” Several hours later, the jury sent another note requesting the legal definitions of counts one and two. The court re-read its instructions, repeating that the justification defense” applie[d] to Count 1 and Count 2.”

The jury acquitted Defendant of Attempted Assault in the First Degree but convicted her of Assault in the Second Degree.

Because it is impossible to know the theory upon which the jury relied in acquitting Defendant of Attempted Assault in the First Degree, the court’s failure to give the required stop deliberation charge requires reversal in the interest of justice.  The First Department reached this claim even though there was no objection to the jury instruction by defense counsel.

SECOND DEPARTMENT

No reversals reported.

THIRD DEPARTMENT

No reversals reported.

FOURTH DEPARTMENT

No decisions reported

SECOND CIRCUIT

CLICK TO READ United States v. Ivan Rosario, Docket # 18-1994

Appeal of a conviction after trial of Federal firearms offenses and sentence of 210 months.  Sentence reversed in part.

Defendant was acquitted at trial of Obstruction of Justice, Witness Tampering, and one count of unlawful possession of a firearm.  The jury could not reach a verdict upon the Conspiracy to Distribute Heroin charge.  At sentencing, the Government requested the Court add a 2-level sentencing enhancement under Guideline § 3C1.1 for his allegedly perjurious testimony at trial, when he testified that he had his child’s mother destroy a phone in order to hide the fact that he spoke with her from his new girlfriend, rather than to destroy evidence of his drug sale.  Over objection, the District Court applied the 2-level enhancement and made factual findings.

The District Court did not make factual findings that Defendant committed all of the elements of Federal perjury charges – that he (1) willfully and (2) materially (3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material matter.

Case remanded for the District Court to make any further findings it can in support of the enhancement under Guideline 3C1.1, or to resentence him.

CLICK TO READ United States v. Kenneth Pettway, Jr., Docket # 18-3316

Appeal of a conviction after jury trial of several drug offenses, Felon-In-Possession of a Firearm, and two counts of Possession of Firearms in Furtherance of a Drug Trafficking Crime, and sentence to 480 months imprisonment.

At trial, the District Court did not instruct the jury that the Government had to prove that Defendant knew that he was a convicted felon at the time he possessed the firearm.  Even though Defendant did not object to this instruction, the Second Circuit held it was plain error in light of the recent Supreme Court case of Rehaif v. United States, 139 S. Ct. 2191 (2019).

Conviction on this one count reversed and remanded for a new trial on that count alone and for resentencing on all counts.

BONUS CASES

CLICK TO READ People v. Desean Cooper, Indictment # 00853-2020 (2021 NY Slip Op 21039)

Erie County Court

This case raises issues surrounding the People’s discovery obligations relating to police disciplinary records, what must be disclosed, and to what extent, if any, the disclosure of police disciplinary records impacts the People’s ability to effectively enter a declaration of readiness.

Here, the People argued that their discovery obligations are limited to the subject matter of this case including their obligation as it relates to impeachment material and disciplinary records. By extrapolation, if any police disciplinary record did not relate to the subject matter of this case it was not discoverable.

The County Court held that CPL 245.10 and 245.20 requires the People to provide disciplinary records and any information that can be used to impeach a police officer.  The statute that took effect on January 1, 2020 prevents the People from answering ready for trial until they have met their discovery obligations.  The People may not withhold known material and information subject to automatic discovery and expect the court to accept a certificate of compliance and statement of readiness.

The County Court held that disciplinary records of the People’s law enforcement witnesses, are subject to discovery and the People must provide those records.  Moreover, given the expansive definition of law enforcement disciplinary records, providing the defense with summaries of the records will not suffice, the entire record, subject to statutorily approved redactions, must be provided.

Declaration of readiness not accepted by the court, speedy trial clock continues to run.

CLICK TO READ People v. Gregory Jones, Docket # CR-002688-21KN (2021 NY Slip Op 21038)

Brooklyn Criminal Court

Ruling after a preliminary hearing, Court rules no probable cause and no reason to hold Defendant in custody pending a felony Indictment.

At a preliminary hearing, the People are required to prove by competent evidence two things: that there is reasonable cause to believe a felony was committed, and that there is reasonable cause to believe that it was the Defendant who committed that felony. C.P.L. §180.70. Here, the People sought to establish the Defendant’s identity as the perpetrator by eliciting the Defendant’s name from the eyewitness. Defense counsel objected to the testimony as hearsay, and the Court requested an offer of proof from the People for the basis of the eyewitness’s knowledge of the defendant’s name. The People responded candidly that the eyewitness had learned the defendant’s name from the subpoena that the Kings County District Attorney’s Office had served on the eyewitness. The People thus sought to prove that the Defendant was the person who committed the charged offense, not through independent proof, but based solely on the People’s accusation. The Court ruled that the proffered testimony would constitute inadmissible hearsay and sustained the defendant’s objection.

Defendant was not visible in the courtroom during the eyewitness’ testimony, and they were strangers.

No probable cause found.

CLICK TO READ People v. Matt Altug, Docket # CR-009552-20NY (2021 NY Slip Op 50145(U))

New York City Criminal Court

Motion for an order deeming the People’s Certificate of Compliance and Certificate of Readiness invalid, motion granted.

Defendant was arrested on May 8, 2020 and charged with Forcible Touching (Penal Law § 130.52), and Sexual Abuse in the Third Degree (Penal Law § 130.55).

After the People filed their certificates of readiness, the defense moved for an order, arguing the People failed to disclose the personnel and disciplinary records of a police officer, the name and contact information for the complainant’s manager who has information about the case, and information about the complainant which was improperly redacted, including the date of birth, home address, and email address.

The Criminal Court rejected the People’s argument that that they are not required to examine a police officer’s personnel and disciplinary files to ascertain whether they contain discoverable material.  The People never stated that they actually looked at the officer’s personnel file.  Consequently, their certificate of compliance and their certificate of readiness are invalid.

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Speedy Trial, Certificate of Readiness, Assault in the Second Degree, self-defense, justification, Obstruction of Justice, Witness Tampering, Federal Sentencing Guidelines Probable Cause, Preliminary Hearing