COURT OF APPEALS

No Reversals Reported

FIRST DEPARTMENT

CLICK TO READ People v. Jose Feliciano, Docket # 2018-2907

Appeal of a conviction after trial of Murder in the Second Degree, Robbery in the First Degree reversed, new trial ordered.

Defendant and a co-defendant were charged with killing one victim in his apartment, and while they fled, robbed another victim.

Prior to trial, Defendant moved to sever, arguing that a joint trial would violate both Defendants’ right to a fair trial based upon mutually antagonistic defenses.  Defendant planned to argue, and ultimately argued, that he was merely present and not an active participant, and that the co-defendant was completely responsible on his own for both crimes.  The co-defendant joined in the motion, and the trial court instead empaneled two separate juries.  Both juries heard all of the evidence except when evidence was admissible against only one defendant, and heard all of the arguments of counsel.  DNA evidence and cell phone triangulation data placed Defendant at the crime scene, but not the co-defendant.  One of the People’s witnesses testified that Defendant asked the co-defendant “why did you have to kill the guy” or words to that effect.  The co-defendant presented an alibi defense, arguing he was not there at all, and used cross-examination of several witnesses to establish that defense.  The co-defendant was acquitted, and Defendant was convicted.

The First Department reversed, finding that the remedy of empaneling two juries was insufficient to cure the prejudice from the mutually antagonistic defenses.  The Court held that using multiple juries is a remedy to be used sparingly.  The co-defendant’s cross examinations, mostly presented to both juries, undermined Defendant’s defense, that he was merely present with the co-defendant and did not share co-defendant’s intent to commit robbery or murder, which was antagonistic to, and irreconcilable with, the co-defendant’s defense that he was not there at all. Defendant’s jury simply “could not have credited both defenses.”  This was especially so where the co-defendant’s lawyer essentially became a second prosecutor.

Under these circumstances, a dual jury trial was improper as it did not prevent Defendant from being prejudiced by the co-defendant’s antagonistic defense.  New trial ordered.

SECOND DEPARTMENT

CLICK TO READ People v. Eric Belluci, Docket # 2016-08390

Conviction for two counts of Murder in the First Degree reversed, new trial ordered.

Defendant, a diagnosed paranoid schizophrenic, was charged with killing his parents in 2010.  For 5 years, he was deemed mentally incompetent to stand trial until 2015, when an expert found him mentally competent, noting that Defendant had been compliant with taking medication, including Lithium.  However, the expert also said that if Defendant stopped taking his medication as prescribed, he would decompensate and become incompetent again.

At least two times prior to the start of trial, the People joined the defense in asking for a new competency determination after it was discovered that Defendant was noncompliant with his medication and could not communicate rationally with his lawyer.  Defendant was relocated to Riker’s Island to await trial, and refused to take his medication once there, and no one at Riker’s could force him to do so.  The trial court denied the requests for competency determination.

At trial, Defendant consistently and vehemently objected to his lawyer presenting an insanity defense, and the court stated it was ordering defense counsel to present that defense, ruling that Defendant did not have the right to make the choice to present an insanity defense or not, especially because he was mentally ill.  Defense counsel presented an insanity defense as ordered to do by the court, and presented a justification defense as ordered by the Defendant.  During trial, Defendant acted out in court and disrupted the proceedings, requiring his removal from the courtroom, and refused to be examined by the People’s expert.  He was convicted of Murder in the First Degree.

The Second Department reversed, finding that the trial court should have held a competency hearing, especially when the People and the defense agreed.  New trial ordered.

CLICK TO READ People v. Luis Jimenez, Docket # 2019-08487

Appeal by the People from an order granting a motion to dismiss the Indictment on the ground that the Grand Jury proceeding was defective under CPL 210.65(5); order reversed, Indictment reinstated.

Defendant was charged with animal abuse for hitting a dog with a stick, causing serious injuries to the dog.  The incident occurred during an altercation with another person, and in the presence of several witness, and was also captured on video surveillance.  Defendant testified at the Grand Jury that the dog was trying to bite him, and said he mistakenly hit the dog when its owner was trying to take the stick.  After he was indicted, he moved to dismiss, and the court granted the motion, finding that the People failed to charge justification to the Grand Jury.

The Second Department reversed, finding that there was no reasonable view of the evidence that warranted an instruction on justification, or self-defense.  The dog weighed 8 points, and was incapable of causing Defendant any injury, especially when Defendant testified he was not scared of the dog before he hit it.  Additionally, the defense of justification under Penal Law § 35.10(6) or Penal Law § 35.15 limits the defense to situation where one person uses force against another person, not animals.

Indictment reinstated.

CLICK TO READ People v. Tybecca Smith, Docket # 2018-06225

Conviction for Criminal Contempt in the First Degree, Penal Law § 215.51(c), reduced to misdemeanor Criminal Contempt in the Second Degree in violation of Penal Law § 215.50(3).

The People concede that the evidence was legally insufficient to establish the element that Defendant violated an Order of Protection issued pursuant to Domestic Relations Law 240 or 252, Article 4, 6, and 8 of the Family Court Act, or Criminal procedure Law 530.12.

In this case, Defendant was accused of violating an Order of Protection issued pursuant to Criminal Procedure Law § 530.13. Criminal Procedure Law § 530.13, which provides protection to victims of crimes other than family offenses, and is not one of the authorities enumerated in Penal Law § 215.51(c).

CLICK TO READ People v. Tyron Hollmond, Docket # 2015-02257

This case is back.

Appeal from a conviction upon a guilty plea to Manslaughter in the First Degree, Attempted Murder in the Second Degree, conviction reversed, plea withdrawn and vacated.

Defendant was charged in two Indictments with Murder in the Second Degree, and Attempted Murder in the Second Degree for different incidents.  Defendant was remanded and held at the Coxsackie Correctional Facility 132 miles north of Brooklyn instead of Riker’s Island.  Defendant was not produced in court on several occasions, and his attorney complained that he could not effectively communicate with his client due to the distance and the restrictions on visiting with inmates at a State prison which are more stringent that Riker’s Island.  Defendant complained he was being denied his right to consult with counsel as a result.  Defendant was produced in court for trial, and the defense raised its complaint again, and the court stated it was willing to offer Defendant a plea of 20 years to life if he pled guilty.  Defendant rejected the offer.  The court stated it would order Defendant to be held closer to Brooklyn.  That request was not honored, and Defendant was sent back to a State correctional facility.

At the next court appearance, defense counsel complained again that he could not meet or confer with his client, and that the Department of Corrections was violated the Defendant’s right to counsel and prepare his defense.  The court again offered Defendant 20 years imprisonment if he pled guilty, and said it “will not ever approve of a sentence in a case this serious anything less than 20 years” when Defendant rejected the offer.  The case was continued for jury selection a couple of days later.  When he returned, defense counsel raised the same complaint, as he did several times thereafter.  Ultimately, Defendant pled guilty and received an 18-year sentence.

Two weeks after his plea, defense counsel appeared at sentencing and told the court Defendant wanted to withdraw his guilty plea.  Defendant told the court that he felt coerced to take the plea due to the lack of communication with his lawyer, and asked for new counsel and to allow him to proceed to trial.  Defense counsel urged the court to appoint a new attorney to represent the Defendant in light of his application.

The trial court denied the motion summarily without appointing new counsel, even before the People took a position on the motion.  The court sentenced him.

The Second Department initially heard the appeal and remanded the case for a new determination on the motion to withdraw the plea, and remanded the case back to Brooklyn, and held the appeal in abeyance.  The trial court then held a hearing.  At the hearing, Defendant described a day that he had to appear in court – waking up at 3 am, not getting food or medication to treat asthma and a mental health issue, and then a 5 hour trip in a cage in a van that was used for K-9.  The only food he would get was a peanut butter and jelly sandwich at 1 pm when he got to court.  He would get back to his cell at midnight, and not get any food on the way back after court.  If he had court the next day he would wake up 3 hours later.  The trial court did not credit Defendant’s testimony that he pled guilty only because he did not have enough time to consult with his lawyer, and denied the motion.

The Second Department reversed, finding that Defendant’s right to counsel was violated by the Department of Corrections, which ignored the trial court’s orders to house the Defendant close to New York City, and the court took no steps to enforce its own orders.  The court was unsuccessful in protecting Defendant’s right to counsel, which resulted in him being coerced into pleading guilty.

Plea vacated, trial ordered.

THIRD DEPARTMENT

CLICK TO READ People v. William A. Holstlander, Docket # 110888

Appeal of a conviction after trial of Sexual Abuse in the First Degree, conviction reversed, new trial ordered.

Defendant was charged with sexually molesting the complainant several years prior when she was 6 or 7 years old.    Count 1 of the indictment referred to conduct that occurred “on or about” October 17, 2014, whereas counts 2 through 13 referred to conduct that occurred, respectively, “in or about” each of the subsequent 12 months.  A Molineaux ruling before trial permitted the People to introduce evidence from the same complainant regarding previous, ongoing uncharged sexual conduct by Defendant.  Before trial, the defense moved to vacate the court’s ruling, arguing that Counts # 2-13 of the Indictment had to be dismissed as duplicitous.  During trial, Defendant moved twice to dismiss the same counts, and the motion was denied each time.

Defendant was convicted of all 13 counts.  Defendant moved to set aside the verdict based on the legal insufficiency of the evidence and that the trial testimony rendered the charges duplicitous. The trial court denied the motion as to count 1, but granted the motion as to the other counts, dismissing them as duplicitous.  The counts were duplicitous because they charged more than one crime within each count, making it impossible to determine which crime the jury found Defendant committed.

The Third Department reversed, finding that the court should have granted the motion to dismiss Counts # 2-13 as duplicitous prior to trial.  The submission of those counts to the jury, plus the additional Molineaux evidence, rendered the trial unfair.

Because the Molineaux evidence was not relevant to prove an element or fit within any of the Molineaux exceptions, inclusion of that evidence deprived Defendant of a fair trial because the prejudice outweighed any probative value.  Another problem was the failure of the trial court to issue a limiting instruction at the time the testimony was received, the only limiting instruction came at the end of trial.

In short, the trial was a hot mess.  New trial ordered.  GREAT decision.

FOURTH DEPARTMENT

No decisions reported.