Stats & Case Summaries - Fourth Department Decisions Released on November 10, 2011

·        People v Beaty (KA 08-02633) – 4AD first rejected D’s claim that omission of a material fact from search warrant (puffy coat taken from D did not match description given by complainant) rendered warrant invalid, as the rest of the warrant application provided probable cause.  Second, the court rejected claims that the photo array procedure was unduly suggestive where the witness was shown two separate arrays on consecutive days, and D was the only person appearing in both.  While admitting the practice was disfavored, it did not per se invalidate the ID procedure and the two photos of D had him in different hairstyles, necessitating different matching fillers.  Third, 4AD found severance of the two offenses with different complainant’s was properly denied as the offenses were joinable because the identity of D was at issue and the modus operandi was sufficiently unique to make proof of his commission of the crimes involving one victim probative of his commission of the crime involving the other victim. 

·        People v Brown (KA 11-00896) – 4AD found D’s objection to allowing a six-year old child to give sworn testimony was preserved for review but was without merit. The presumption that a child less than nine years old is incapable of giving sworn testimony was overcome by the trial court’s “individualistic” determination that the child understood the nature of the oath, and given the trial court’s unique “opportunity to view the witness” would not be disturbed absent a clear abuse of discretion.  Moreover, the error was harmless as the child would properly have been permitted to testify as an unsworn witness under CPL 60.20 (2), and her testimony was sufficiently corroborated by other evidence, including D’s own statements.

·        People v Holmes (KA 08-00029) – On remittitur, D’s plea was vacated and suppression granted.  Earlier 4AD had denied suppression where the police found the weapon in a duffel bag located in the bedroom closet of D’s girlfriend during a search of the house co-leased by D’s girlfriend and her mother, concluding that D failed to establish a legitimate expectation of privacy in the duffel bag or its contents, and considered the propriety of the search of the bedroom only.  The Court of Appeals reversed and remitted the matter for consideration of the propriety of the search of the duffel bag and 4AD then found that neither mother nor girlfriend had actual or apparent authority to consent to the search of the duffel bag, as there was no evidence of “shared ‘common authority’ based upon mutual use or joint access and control.”  Statements were suppressed as fruit of the poisonous tree, and the erroneous suppression ruling may have affected defendant’s decision to plead guilty, necessitating that the plea be vacated.

·        People v Ippolito (KA 07-02496) – D charged with grand larceny and 43 counts of criminal possession of a forged instrument in the second degree. 4AD found that 40 of those counts were not supported by legally sufficient evidence as D signed complainant’s name while he was her attorney-in-fact pursuant to the power of attorney.  As D was authorized to make the checks, they cannot be said to have been falsely made.  D was also entitled to a hearing on the amount of restitution.  Carni, J. dissented, finding that the power of attorney executed by complainant did not authorize D to sign her name and purport them to be authentic creations by the complainant.

·        People v Mull (KA 08-00225) – 4AD found lower court’s Sandoval ruling not an abuse of discretion as prior false personation conviction bore directly on his credibility, and a detailed recitation by the lower court of its underlying reasoning in weighing the probative value versus prejudice is not always required, particularly where the basis of the court’s decision may be inferred from the parties’ arguments.  4AD rejected claim that the court erred in admitting evidence testimony concerning D’s prior aggressive behavior toward one of the victims because it was introduced solely to demonstrate his criminal propensity, finding it was relevant to establish D’s intent and motive, as well as to provide relevant background information, and its probative value outweighed its prejudicial effect.

·        People v Cruz (KA 09-00299) – D argued that a photo array was unduly suggestive because the photos were obtained from the Department of Corrections.  4AD finds the argument unpreserved and further explains that all of the photos were obtained from DOCS and labeled “NYS DOCS.”  As a result, there was not a substantially likelihood that D would be singled out for identification.

·        People v Rawleigh (KA 08-02363) – Prosecution did not commit a Brady violation by failing to provide D with photos taken of him when he was arrested for driving while intoxicated.  Brady does not require prosecutors to turn over evidence when the defendant knew of, or should have reasonably known of, the evidence and its exculpatory nature. Here, based on the circumstances of D’s arrest, he knew, or should have known that he was being photographed and that the photos were of an exculpatory nature.

·        People v Aponte (KA 08-11-01009) – Reviewing the issue as a matter of discretion in the interest of justice, 4AD finds that D’s conviction of sexual abuse in the first degree was not supported by legally sufficient evidence.  With respect to the element of forcible compulsion, the victim’s testimony that D would sometimes threaten to ground her if he did not open the door was insufficient to establish that D placed the victim in fear of immediate death or physical injury on the specific occasion in question.  4AD modified the judgment by dismissing the second count.

·        People v Ali (KA 08-01268) – 4AD rejects D’s argument that second degree assault (PL § 120.06 [6]) is a lesser inclusory concurrent count of first degree burglary (PL § 140.30 [2]).  The assault count requires that a physical injury be caused “in furtherance of” the underlying felony, but such evidence is not required for burglary.  4AD notes that its decision is consistent with the Court of Appeals decision in People v Abrew (95 NY2d 806). In Abrew, the Court determined that first degree assault (PL § 120.10 [4]) is not a lesser inclusory offense of first degree robbery (PL § 160.15 [1]), because first degree assault contains the “in furtherance of” element and first degree robbery does not.  4AD further notes that to the extent its decision in People v Rodrigues (74 AD3d 1818) suggests a different result, it should not be followed.

·        People v Weaver (KA 07-02087) – Lower court failed to comply with CPL 310.20 (1) and 310.30 in handling the fourth jury note.  The note requested that the jurors be allowed to watch a videotape in a setting where the jurors could discuss the video and control what parts to watch.  The lower court neither read the jury note nor responded to it on the record.  The lower court also did not give D an opportunity to be heard regarding the note.  Because the court failed to comply with a core responsibility under CPL 310.30 a mode of proceedings error occurred requiring reversal.  Contrary to the prosecutor’s argument, harmless error analysis did not apply.

·        People v Hackett (KA- 11-00285) – Order determining that D is a level 3 sex offender is reversed and remanded.  The court miscalculated D’s total risk factor score and mistakenly determined that he was presumptively level 3, when in fact, he was presumptively level 2.  The court also sua sponte assessed additional points under risk factor 3, which was a violation of D’s due process rights.  D must be afforded notice of the hearing and a meaningful opportunity to respond.  Here, the risk factors were not raised by the People, and D learned about them for the first time when the court issued its decision.

·        People v Ali (Andrew) (KA 10-00328) – The issue at D’s assault trial was whether his actions were justified pursuant to Penal Law § 35.20 (3), which allows deadly physical force if D believes it is necessary to prevent a burglary to his dwelling.  Here, the force was not justified, as D’s own witness testified that the person had already fled the apartment by the time D began stabbing him.  Once the person fled, the justification for use of force ceased.

·        People v Carbone (KA- 10-02348) – Finding that D is a level 3 sex offender is affirmed.  The court did not abuse its discretion by refusing to grant a 3rd adjournment to enable D’s attorney to obtain additional records from his inmate file to support D’s contentions.  Even if the records supported D’s contention, his score under the RAI would have remained the same.  Further, the request for adjournment was made on the day before D was discharged from prison and the court was obligated to determine D’s risk level prior to his parole.

      The court’s determinations were supported by clear and convincing evidence in the presentence report.  Where the information in the PSR is supplied by the victim or some other witness, under circumstances bearing indicia of reliability, the reliable hearsay requirement is met.

      The court erred in relying upon the duration of the abuse and the age of the victim in departing from the presumptive level 2 risk, but the upward departure was nonetheless warranted.  D’s perception that oral sodomy between an adult and child was “normal” is not otherwise taken into consideration by the RAI and compels the conclusion that D poses an increased risk to public safety.

·        People v Gonzalez (KA 10-01053) – The photo array was not unduly suggestive.  The subjects in the photo array were sufficiently similar in appearance that the viewer’s attention was not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection.

     Even if there was a Brady violation for the prosecution’s failure to turn over a witness statement, it does not require reversal, because D received the statement as part of the Rosario material and was given a meaningful opportunity to use the exculpatory evidence.