Monday, September 28, 2015
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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, November 23, 2014
Sunday, November 16, 2014
Sunday, October 5, 2014
Wednesday, October 1, 2014
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.
Wednesday, July 9, 2014
Monday, June 23, 2014
Sunday, June 15, 2014
Tuesday, May 13, 2014
Police lack probable cause to arrest for trespass when they know that the defendant is an invited guest of a tenant
HLAS attorney Philip Rothschild today obtained a reversal of
a resisting arrest conviction in the New York Court of Appeals. The decision in
People
v Finch arose after Syracuse
police repeatedly arrested Mr. Finch for trespassing at the Parkside Commons
apartment complex. Mr. Finch was also charged with resisting arrest following
the third time police arrested him. The mother of Mr. Finch’s son, who lived at
Parkside, informed police during the first arrest that Mr. Finch had permission
to be on the property as her guest. In an earlier appeal, the County Court
reversed the trespass conviction. It said that Mr. Finch could not be a
trespasser, because he was an invited guest of a tenant. County Court
nevertheless upheld the resisting arrest conviction, finding that police had
probable cause to arrest. The Court of Appeals disagreed and held that the
County Court should have also reversed the resisting arrest charge. Because the
officers were specifically told that Mr. Finch was an invited guest, and had
permission to be at Parkside, they could not reasonably believe that he was a
trespasser. They therefore did not have probable cause to arrest him for
trespass. Since the arrest was unlawful, Mr. Finch could not be charged with
resisting arrest.
In reaching this conclusion, the Court also held that Mr.
Finch’s challenge to the sufficiency of the trial evidence of resisting arrest
was preserved by an argument made by counsel before trial. “We hold that, where
a defendant has unsuccessfully argued before trial that the facts alleged by
the People do not constitute the crime charged, and the court has rejected the
argument, defendant need not specifically repeat the argument in a trial motion
to dismiss in order to preserve the point for appeal.”
Sunday, May 11, 2014
Sunday, May 4, 2014
Wednesday, April 2, 2014
Monday, March 24, 2014
Monday, February 17, 2014
Sunday, February 9, 2014
Monday, January 6, 2014
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