COURT OF APPEALS

CLICK TO READ People v. Justice A., No. 99

Defendant was charged with Assault in the Third Degree, a Class A misdemeanor. At one of the court appearances on November 5, 2018 the judge presiding ruled that the adjournment would be charged to the People. Later, a different trial court judge determined that 87 days of chargeable time had elapsed under CPL 30.30, excluding an 8-day contested period of time from November 5, 2018 – November 13, 2018. The second judge held that “the delay was caused by the defendant’s failure to appear, and the unavailability of trial counsel” and so should be charged to the defendant.

Under CPL 30.30 (4) (f), a “period during which the defendant is without counsel through no fault of the court” must be excluded when calculating the time within which the People must be ready for trial. However, a defendant is not “without counsel” within the meaning of the statute when appearing with substitute counsel.

Defendant was represented by a lawyer from The Legal Aid Society. On November 5, 2018, the date that defendant’s case was calendared for trial, defendant appeared in court with a different attorney from that office, who informed the court that defendant’s original attorney was leaving the office and the case was being reassigned to another attorney from Legal Aid. Defendant plainly was represented at that appearance and was therefore not “without counsel.” Accordingly, the time should not have been excluded under CPL 30.30 (4) (f) and should have been charged to the People.

The case was reversed and the Information was dismissed under the Speedy Trial statute.

CLICK TO READ People v. Sergio Cerda, No. 69

In this appeal, the Court of Appeals was called to determine whether the trial court erred in applying New York’s Rape Shield Law (see CPL 60.42) to exclude forensic evidence proffered by Defendant to demonstrate that someone else caused the complainant’s injuries.

Defendant was charged with charged with two counts of Sexual Abuse in the First Degree arising from allegations that he digitally penetrated his minor relative’s vagina and touched her breasts. The prosecution’s theory was that defendant, then over 60 years old, committed the crime when he was babysitting the complainant and two other younger relatives. After she reported the incident, she underwent a sexual assault examination which revealed burst blood vessels an a scratch on her hymen. A forensic examination of the evidence performed by the Nassau County Office of the Medical Examiner confirmed the presence of the complainant’s saliva on the vulvar swab. An analysis of a saliva mixture taken from a stain on the complainant’s underwear revealed three contributors: the complainant and two unidentified males.

Prior to trial, Defendant filed a motion in limine seeking to introduce the forensic evidence to show someone else caused the injuries at issue. Defense counsel argued that the forensic reports were not the type of evidence barred by CPL 60.42 because the forensic findings offered plausible alternative explanations for the injuries the prosecution was seeking to attribute to him, indicating that they were consistent with masturbation or sexual contact with a third-party. Defendant specifically argued that exclusion of the evidence would negatively impact his ability to present a defense. The trial court denied defendant’s motion and excluded the evidence under CPL 60.42, concluding that the theories advanced by defense counsel were “very speculative” and the forensic findings risked “confus[ing] the jurors.”

At trial, the District Attorney presented the testimony of a pediatrician specializing in evaluating victims of sex abuse to establish that the injuries on the complainant’s hymen were consistent with digital penetration. On cross-examination, he conceded that the injuries could have been caused by sexual contact with a third party.

At trial, Defendant testified in his own defense and recounted that the complainant was angry at him for speaking ill of her father.

The Court of Appeals reversed and ordered a new trial. The Court held that the trial court erred in denying admission of the evidence under CPL 60.42 (5). Under this subdivision, evidence of a victim’s sexual conduct may be admitted in evidence during a sex crime prosecution when it “is determined by the [trial] court after an offer of proof by the accused . . . to be relevant and admissible in the interests of justice”

Here, the trial court’s erroneous application of the Rape Shield Law deprived Defendant of his constitutional right to present a defense.

FIRST DEPARTMENT

CLICK TO READ People v. Alexia Williams, Docket # 2021-04599

Defendant pled guilty to Assault in the Second Degree and was sentence to 4 months jail split with 5 years of probation. The trial court failed to determine defendant’s understanding and waiver of her right to present a defense of justification after defendant stated, during the plea colloquy, “I had to defend myself” and “I wasn’t just the aggressor in the situation.” As a result, the guilty plea was vacated and the case was reversed and remanded.

CLICK TO READ People v. Roy Savage, Docket # 2019-3213 (2023 NY Slip Op 05452)

Police responded to Defendant’s 911 call, where he reported that he and his wife had been stabbed during a home invasion. Defendant was taken to the hospital and treated for injuries, and taken to the precinct for questioning the next morning. He was interrogated after given Miranda rights, and Defendant asked if he was being arrested, but told he was not. Defendant stated his concern that whatever he said could be used against him because Miranda warnings were already given. The police lied and told the Defendant that his statements would “not necessarily” be used against him but rather would be used to help him as he would benefit in court by confessing. They also minimized the consequences of confessing, assuring Defendant that “this doesn’t have to be the end” but he had to “do the right thing.” Defendant then agreed to answer the officers’ questions. He initially maintained his home invasion story, but the officers continued to press him. Defendant then admitted to stabbing his wife in self-defense after she got angry and attacked him. Defendant told police where the knife was, and they recovered it and obtained DNA evidence from it.

Several hours later, an Assistant District Attorney questioned Defendant in a different room of the precinct and obtained a recorded statement from him after Miranda warnings. Defendant then reiterated his account of how he stabbed his wife in self-defense, got dressed and went outside to hide the knife in a parking lot before calling 911.

The trial court suppressed the first statement but denied suppression of the second statements and the knife and DNA evidence. The First Department reversed, finding that there was not a sufficient break in the interrogation to dissipate the taint from the initial Miranda violation. Defendant received complete and proper Miranda warnings prior to giving Statement #1, but they were undermined by the additional commentary and misleading statements made by the police officers. Moreover, after the officers made the misleading statements, nothing was specifically done to correct any resulting misunderstanding to ensure that the Defendant understood the import and effect of the Miranda warnings and that his statements could, and would, be used against him. This misunderstanding cannot be assumed to have simply dissipated after the Assistant District Attorney gave Defendant the second Miranda warnings, even though the second warnings took place hours later and in a different room. As the second Miranda warnings did not dissipate the taint, they did not effectively protect Defendant’s rights.

Reversed, evidence suppressed, and remanded for new trial.

CLICK TO READ People v. Samuel Cosme, Docket # 2018-5424

Defendant pled guilty to Reckless Endangerment in the First Degree and was sentenced to probation. The plea allocution did not address whether Defendant was making an informed decision to waive a potentially viable insanity defense and the record as a whole casts
significant doubt on Defendant’s mental competence. Defendant is 68 years old, severely mentally ill, and resides in a secured unit of an assisted living facility under a civil guardianship order. The plea was vacated and the Indictment dismissed.

CLICK TO READ People v. Johnny Jackson, Docket # 2021-04347

Defendant was adjudicated a Level 2 Sex Offender at his SORA hearing after he was scored 15 points for causing physical injury to the victim. Defendant challenged the 15 points arguing forcible compulsion and also because neither the Sex Trafficking nor the Kidnapping in the First Degree charges required proof of physical injury. At the hearing, for the first time, the People argued that Defendant should receive 15 points based on a theory of accessorial liability because he was “indirectly involved while he was with the co-defendant” and the co-defendant was the one who injured the complainant. Defendant objected, but his objection was overruled.

The First Department reversed, finding that the People’s late argument constituted unfair surprise and notice was required. Reversed and remanded for a new hearing.

SECOND DEPARTMENT

CLICK TO READ People v. Hedilberto Perez, Docket # 2018-05819

Defendant pled guilty to Rape in the Second Degree and was adjudicated a Level 2 Sex Offender in his absence. The record is silent as to whether the Defendant received notice of the SORA hearing and there was no evidence, hearsay or otherwise, that the Defendant expressed a desire to forego his presence at the hearing. Since the record fails to establish that the defendant voluntarily waived his right to be present at the SORA hearing, the order must be reversed and the matter remitted to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination.

THIRD DEPARTMENT

CLICK TO READ People v. Daniel O’Day, Docket # 111252

Defendant was convicted after a jury trial of Driving While Intoxicated and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree. At issue in this case was a motion to dismiss filed pursuant to CPL § 30.30. The case was previously remitted for a hearing because the record was insufficient to determine which periods of time were chargeable against the People. Following a hearing, the trial court determined that 11 months and 5 days were charged against the People. The Third Department found 192 days actually chargeable against the People, and the District Attorney did not challenge that determination on appeal. As a result, the conviction was reversed and the Indictment dismissed.

CLICK TO READ People v. Jeffrey Van Alstyne, Docket # 110040 & 111752

Defendant waived indictment and was charged in a Superior Court Information with Assault in the Second Degree and Criminal Mischief in the Fourth Degree. He pled guilty and waived his right to appeal, and was sentenced to 7 years determinate plus 3 years of Post-Release Supervision, and $53,035.50 in restitution. At the sentencing, Defendant made statements that indicated that he was acting in self-defense. Despite acknowledging the People’s concerns that his statements raised a defense, the court sentenced Defendant without conducting any further inquiry. He later filed a 440 motion, which was denied. The Third Department reversed, finding that the Defendant should have been given an opportunity to withdraw his plea. The conviction was vacated, and the case was remanded.

FOURTH DEPARTMENT

CLICK TO READ People v. Scott J. Andrews, Docket # KA 22-01167

Defendant was convicted after a jury trial of Falsifying Business Records in the First Degree, Penal Law § 175.10. At trial, the prosecution relied on testimony from a Sergeant from the Sheriff’s Office that, during the investigation into a shooting incident, he recorded his conversation with defendant in a report and the report became part of the business records for the sheriff’s office. Police later determined Defendant was lying. The People’s theory was that, by lying to the sergeant, defendant caused a false entry in the business records of the sheriff’s office. The trial testimony established, however, that the sergeant’s report was written to record the “condition or activity” of the sheriff’s office’s investigation into the shooting (Penal Law § 175.00 [2]). Additionally, the People failed to enter into evidence the business record that was purportedly falsified by Defendant. Based on this, the Fourth Department determined that the evidence was legally insufficient to establish a violation of Falsifying Business Records in the First Degree. The conviction was reversed and the Indictment dismissed.

CLICK TO READ People v. Al Amin McMillon, Docket # KA 22-00490

After receiving information from mall security relaying a complaint that “two suspicious black males” had exited the mall “with H&M bags full of merchandise” with a description of the vehicle, police stopped a vehicle in which Defendant and two other people were riding. The police did not observe Defendant or any other occupant stealing merchandise, and at the time of the vehicle stop, no one had reported the same. Defendant moved to suppress statements and the physical evidence, but the court denied the motion. Defendant pled guilty to Criminal Possession of Stolen Property in the Fourth Degree.

The Fourth Department reversed and granted suppression. The Court held that the vehicle stop was unlawful because that the conduct known to the deputies constituted nothing more than “equivocal or innocuous behavior that is susceptible of an innocent as well as a culpable interpretation,” which was insufficient to provide the requisite reasonable suspicion to justify the vehicle stop. As a result, the conviction was reversed, suppression of physical evidence and statements was granted, and the case dismissed.

There was a dissenting opinion.

CLICK TO READ People v. Casey C. Burke, Docket # KA 22-01636

Defendant was stopped while driving a vehicle and the police officer discovered that Defendant had an open arrest warrant for a misdemeanor Petit Larceny charge that had been issued 7 years prior by the Watertown Town Court in Jefferson County. The arrest warrant authorized any officer of the Jefferson County Sheriff’s Office or the New York State Police to arrest Defendant. Defendant was stopped by Cortland County law enforcement. He was taken into custody and booked into the Jefferson County jail, where drugs were found in his pocket. Thereafter he was charged with Criminal Possession of a Controlled Substance in the Third Degree.

Defendant moved to suppress, and the parties agreed that the court would consider the motion on submissions and without an evidentiary hearing, and they stipulated that, if the execution of the arrest warrant was improper, the physical evidence and statements would be suppressed as fruit of the poisonous tree. The trial court held that Cortland County law enforcement properly “detained” defendant on the arrest warrant until it could be endorsed by a local criminal court and that Cortland County law enforcement did not execute the arrest warrant but rather arrested defendant for separate offenses.

The Fourth Department reversed. It held that the permissible geographical area for execution of an arrest warrant issued “by a city court, a town court or a village court” is limited to “the county of issuance or . . . any adjoining county.” Additionally, the Fourth Department held that Defendant was not “detained” on the warrant but actually arrested.

Because the arrest was invalid, the evidence should have been suppressed. Conviction reversed, suppression granted, Indictment dismissed.