Thursday, December 4, 2014

“Non-facial duplicity” arguments must be preserved – 30 years of Fourth Department caselaw overruled

Fourth Department criminal defendants were dealt a significant blow last week by the Court of Appeals in People v Allen (__ NY3d __, 2014 NY Slip Op 8222 [2014]), in which the Court held that non-facial duplicity errors must be preserved for appellate review. Terrell Allen was indicted for attempted murder and murder. The proof at trial showed that Allen first attempted to shoot the victim, but his gun did not fire. Ten minutes later he tried again. This time he fired the gun twice, with one bullet missing and the other striking the victim in the head, killing him. Neither the indictment nor the bill of particulars specified whether the attempted murder count referred to the first attempt, where the gun did not fire, or the second one, where the bullet missed. The trial court’s instructions to the jury likewise did not specify which incident the attempted-murder count referred to. Defense counsel did not object to the jury charge, and the jury convicted Allen of both counts.

On appeal, Allen argued that the indictment was rendered duplicitous by the proof at trial. He contended that the proof and the court’s charge made it impossible to tell whether he was convicted based on the act for which he was indicted, and that the error did not require preservation. The Court of Appeals disagreed, first noting that three years earlier, in People v Becoats (17 NY3d 643 [2011]), it held that facial duplicity arguments—i.e., those that are apparent on the face of an indictment—required preservation (Allen at *4). The Becoats Court was particularly concerned that if such errors did not have to be preserved, defendants would engage in gamesmanship by sitting quiet at trial, but if convicted, would raise the duplicity issue to obtain a new trial (id.). Similar concerns led the Court in Allen to find that non-facial duplicity errors had to be preserved:

“Any uncertainty could have easily been remedied with an objection during opening statements, the witness testimony, or to the jury charge. Requiring preservation will prevent unnecessary surprise after the conduct of a complete trial. Accordingly, we hold that issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review.” (Id. at *5).

In so holding, the Court expressly overruled 30 years of Fourth Department precedent which, starting with People v Rubin (101 AD2d 71 [4th Dept 1984]), had held that non-facial duplicity errors constituted mode of proceedings ones, exempt from the rules of preservation. This doctrine was unique to the Fourth Department, the other three Appellate Divisions all having declined over the years to hold that an objection was not required. The doctrine was rooted in what the Fourth Department had held was the fundamental and nonwaivable “right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment” (id. at 77).

In light of Allen, trial counsel must be all the more vigilant for so-called non-facial duplicity problems. Defendants can no longer rely on the mode of proceedings error exception where trial counsel fails to object. Both trial and appellate attorneys should also be aware that the failure to object to such errors can be grounds for an ineffective assistance of counsel claim (see e.g. People v Norfleet, 267 AD2d 881, 883-884 [3d Dept 1999]).

Sunday, August 10, 2014

Case Summaries - Fourth Department Decisions Released on August 8, 2014

Criminal Case Summaries:

·       People v Figueroa-Norse  (KA 12-00137) – 4AD rejects D’s argument that the lower court should have suppressed statements she made to police because she was not read the Miranda warnings. 4AD finds that D was not in custody during the interrogation and warnings were therefore not required. D was interrogated in the hospital where the victim, D’s eight-year-old foster child, was being treated. Although the interrogation took place over the course of 10 hours, the questioning was not continuous. D was given breaks to go to the bathroom and to get a drink. D was able to contact family members by telephone, and at one point she left the hospital to retrieve an items from her car, and then returned. 4AD also notes that the questioning was investigatory rather than accusatory, D was not restrained, and she was never told that she was required to answer questions.

·       People v Mobley (KA 10-01203) – 4AD reverses D’s conviction. The lower court should have suppressed the gun police found on D’s person as well as statements because police seized D without the requisite reasonable suspicion. Police observed D standing with a group of people in an allegedly high-crime area of Rochester. The officer saw D cup an item in his hand as he adjusted his clothing. That officer then instructed another unit to stop D. As that unit approached, D began walking away. He was told to stop and show his hands. D then placed the item he had in his hand into his back pocket. Police stopped him, found a cell phone in the back pocket, and a further pat-frisk yielded a gun. 4AD explains that D’s conduct was at all times innocuous, and did not give rise to reasonable suspicion. The fact that D was in a high crime area, had reached for his right side, and had placed a cell phone in his back pocket was insufficient. Police did not see the outline of a gun, or hear the audible click of a magazine, nor did they indicate that they felt they were in danger.

·       People v Myhand (KA 10-01033) – 4AD finds that the lower court correctly ruled that the search warrant to search D’s residence was supported by probable cause (PC). PC was established by evidence regarding three separate drug transactions. The first transaction involved a controlled buy by a confidential informant (CI) at D’s old residence. The second and third transactions also involved the CI, but the CI gave money to an “unwitting participant” (UP), who then purchased drugs at D’s new residence. 4AD finds that PC was established without regard to any hearsay evidence, because police searched the CI before each transaction and gave him money, and they observed the CI and the UP go to D’s residence each time. During the third transaction, police observed the UP leaving D’s residence along with D. 4AD further concludes that even if the hearsay evidence must be considered to find PC, then under the Aguilar-Spinelli test, both the CI and UP were reliable and had a sufficient basis for their knowledge. 4AD notes in particular that the UP’s statements to the CI were against his penal interest, and thus there was good reason to believe what UP said.