· People v Bradley (KA 07-02188) – Court erred by failing to instruct jury about post-traumatic stress disorder as it related to the defense of justification. D served notice pursuant to CPL 250.10 indicating she intended to introduce evidence that she suffered from battered woman syndrome. At trial, D’s expert testified about BWS and PTSD, as did the People’s expert. People asked that jury not be instructed regarding PTSD because specific notice was not provided. 4AD explained that 250.10 was “designed to allow the prosecution an opportunity to acquire relevant information from any source—not merely from an independent examination of the defendant—to counter the defense” (15 NY3d 40). Here prosecution had sufficient notice to respond to defense of justification and trial court should have provided the jury instruction. Nonetheless, error was harmless.
· People v Currier (KA 09-01819) – The People pointed out that criminal trespass-2nd is a lesser included offense of burglary-1st. Court noted that this is an issue that does not require preservation. Court also modified harsh and severe sentence imposed for conviction on burglary-2nd to a determinate term of 6 years.
· People v Dunn (KA 08-00139) – D was initially questioned by two investigators without being Mirandized. D denied all involvement in crime at that time. D was then left alone for 1 hour. One investigator returned, Miranda warnings were given, and questioning continued. D made incriminating statements during second interrogation. 4AD found that there was a “sufficiently ‘definite, pronounced break in the interrogation’” to dissipate the taint of the first Miranda violation.
· People v Erle (KA 09-02128) – D contended that evidence was legally insufficient because indictment alleged that the time frame in which the crime occurred was on or about a day in June 2008, but the victim testified that the incident in count one of the indictment occurred toward the end of May 2008. 4AD stated that where time is not an essential element of the offense, “the prosecution is not required to prove the exact date and time the charged offenses occurred.” Variance between dates alleged in indictment and dates established at trial did not render the evidence legally insufficient.
· People v Handy (KA 08-00025) – Contrary to D’s contention, adverse inference charge was not warranted regarding People’s failure to preserve videotape of assault, because D failed to establish that tape was discoverable evidence that People were required to preserve. There was no support in the record for D’s claim that the tape was exculpatory and, therefore, the contention that the tape was Brady material was merely speculative.
· People v Little (KA 03-02239) – Although D did not renew TOD motion, 4AD reviewed legally insufficient evidence argument as a matter of discretion in the interest of justice. Though People argued such review should not be undertaken, 4AD explained that “we cannot agree with the People’s reasoning where, as here, a defendant is convicted of a crime that he plainly did not commit.” 4AD then determined that the evidence, which involved a one-on-one shooting involving potential harm to only one individual (which the Court of Appeals made clear in People v Payne and People v Suarez would not support a conviction of depraved indifference murder), was not sufficient to establish murder-2nd. 4AD also rejected the People’s argument that depraved indifference law, as it stood at the time of D’s trial, should be applied on direct appeal.
· People v McCullough (KA 07-02491) – Lower court failed to make sufficient inquiry regarding possible conflict of interest with defense counsel. At sentencing D requested new counsel and stated that he filed a grievance against present counsel (due to failure to investigate certain allegations and failure to respond to D’s requests). Because D made specific factual allegations of serious complaints against counsel, it was incumbent upon the lower court to make at least a minimal inquiry to determine merit of complaint. Instead, lower court sentenced D without asking whether the grievance created an adversarial situation, and without directing defense counsel to continue his representation of D. 4AD vacated sentence and remanded for assignment of new counsel and resentencing.
· People v Presha (KA 07-01266) – In prosecution for sodomy, court properly admitted testimony by victim of prior instance of abuse to establish element of forcible compulsion, and to explain the victim’s delay in explaining the abuse. Nevertheless, D was denied a fair trial because the court did not provide the jury with a limiting instruction, at the time the evidence was admitted and during the final charge, to minimize the prejudicial effect of this evidence. (Error was not preserved but 4AD reviewed it as a matter of discretion in the interest of justice.) Error was not harmless because guilt rested solely with the jury’s assessment of the victim’s and defendant’s credibility. 4AD further noted several instances of prosecutorial misconduct. (Scudder, P.J., and Sconiers, J., dissenting).
· People v Rivera (KA 09-02420) – D failed to establish reasonable expectation of privacy in vehicle searched by police. D did not own the car, nor was he in the vicinity when it was searched. D’s sister testified that it was a family car and family members each took turns driving the car, but this was insufficient for D to meet his burden of establishing a reasonable expectation of privacy. 4AD also upheld the seizure of D’s bicycle from the yard of an apartment building, stating that “where two or more individuals share a common right of access to or control of the property to be searched, any one of them has the authority to consent to a warrantless search in the absence of the others.”
· People v Starkweather (KA 10-00552) – D argued SCI was jurisdictionally defective because it did not allege that D had knowledge of the order of protection he was accused of violating. 4AD said the SCI was sufficient because it alleged, in conformance with PL § 215.50 (3), that D “intentionally disobeyed a mandate of a court; that is, [D] intentionally disobeyed an Order of Protection.” 4AD explained that D could not have intentionally violated the order unless he had knowledge of it. (Compare with People v Ferenchack [KA 09-00595 – March 25, 2011]).
· People v Wildrick (KA 10-02011) – Lower court erred in denying renewed request for a subpoena duces tecum for sex-crime victim’s school records. D made pretrial motion and renewed his motion during trial after the victim’s mother testified about the child’s behavior, which included that the victim liked school and that the mother spoke to guidance counselors on an almost everyday basis. Here, the records had the potential to contradict the mother’s testimony and were reasonably likely to contain information relevant and material to the determination of guilt or innocence. Lower court should have conducted an in camera review of the records to determine whether at least a portion of the records should be disclosed. Error was not harmless because the evidence, which consisted largely of the victim’s accusations, was not overwhelming. Court also found that two counts of endangering the welfare of a child were time barred (reviewing this issue as a matter of discretion in the interest of justice).
4AD also admonished the prosecution for making irrelevant and inflammatory comments on summation that had a tendency to prejudice the jury against D (see also People v Presha summarized herein). (Smith, J.P., dissenting).
No comments:
Post a Comment