Appellate Update (November 5-16, 2018)
Second Department
Reversing and remanding for a new trial for Crawford and Inoa errors.
Mr. Jones was allegedly part of the S.N.O.W. gang. Two officers testified as experts based on their expertise “in the hierarchy, practices, [and] languages of the S.N.O.W. Gang and other gangs.” Both officers stated that their expertise stemmed from many post-arrest “debriefings” of S.N.O.W. gang members.
First, the Court held that the testimony of both experts violated Crawford because their knowledge was based on “out-of-court testimonial statements made by absent witnesses who were never subjected to cross-examination by the defendant.”
Second, the hearsay testimony was “impermissibly conveyed to the jury . . . in the guise of expert testimony” and impermissibly conveyed as the truth for the matter asserted.
In violation of Inoa, one officer “usurp[ed] the jury’s function by interpreting, summarizing, and marshaling the evidence,” when he “offered commentary” on and “connected the evidence.”
Reversing and dismissing the indictment (as against Mr. Lucas).
Defendant was allegedly part of the S.N.O.W. gang (tried with Mr. Jones above). Defendant was charged with conspiring to murder two rival gang members. The evidence was legally insufficient to prove conspiracy in the second degree, therefore the motion for a trial order of dismissal should have been granted.
The evidence “showed that the defendant conspired with others to retaliate against rival gang members for the recent shooting death of a member of the S.N.O.W. Gang, [but] there was no direct or circumstantial evidence tying this defendant to any plan specifically intended to kill either [rival gang member].”
Reversing and remanding for new trial in the interest of justice.
The jury found Mr. Fletcher guilty of assault in the second degree and criminal possession of a weapon in the third degree, but found him not guilty of assault in the first degree. The lower court provided a justification instruction on the assault charges, but did not instruct on the defense of temporary and lawful possession of a weapon with respect to the charge of criminal possession of a weapon.
The lower court’s jury charge in conjunction with the verdict sheet failed to convey to the jury that if it found Mr. Fletcher not guilty based on justification as to assault in the first degree, then “it should simply render a verdict of acquittal and cease deliberation, without regard to” assault in the second degree. This was not preserved. In the interest of justice a new trial is necessary because the Court “[could not] say with any certainty and there is no way of knowing whether the acquittal on assault in the first degree was based on a finding of justification.”
Finding Mr. Batista’s waiver of the right to appeal was valid thus a review of his excessive sentence claim is precluded.
During the plea proceeding, there was discussion regarding the defendant waiving his right to appeal:
THE COURT: All right. Do you understand that one of the terms of this plea agreement is that you will not exercise your right to appeal.
THE DEFENDANT: Yes, sir.
THE COURT: All right. Is there a right to appeal form executed here? Please uncuff the defendant.
[DEFENSE COUNSEL]: He executed the waiver of appeal, your Honor.
THE COURT: Mr. Batista, I have this form in front of me, the waiver of your right to appeal. Did you just sign that?
THE DEFENDANT: Yes, sir.
THE COURT: Did you discuss this with your attorney Mr. Weinstein before you signed it?
THE DEFENDANT: Yes, sir.
. . .
THE COURT: By waiving your right to appeal, you will be foreclosed forever from complaining about any errors that may have occurred in this proceeding. Do you realize that?
THE DEFENDANT: Yes, sir.
First, “the court’s phrasing served to differentiate the rights the defendant gave up by pleading guilty from the right to appeal the defendant gave up as part of this plea agreement.”
Second, Mr. Batista acknowledged signing the written waiver form, and answered that he discussed it with his attorney before he signed it, that he understood all those discussions, that he was satisfied with those discussions, and that he signed it of his own free will.
Third, like in Ramos (CTA, 2006), “any ambiguity in the oral colloquy was cured by the detailed written waiver of the right to appeal.”
The Court continued, stating “we take the opportunity to respectfully urge our trial courts to give greater attention to the colloquy used in taking a waiver of the right to appeal.” The Court quoted a prior Second Department case (Brown) which has a “thorough explanation” of the waiver of the right to appeal and the Criminal Jury Instructions & Model Colloquies.
Additionally, the Court noted, “[o]ur research has shown that this Court has held an appeal waiver invalid in well over 200 appeals over the past five years.
Fourth Department
New trial ordered for a Batson violation.
The court had previously remitted the matter for the prosecution to provide a race-neutral reason for striking a black juror. During the hearing, the prosecutor testified that “there was something on [the prospective juror’s] jury questionnaire . . . that [he] did not particularly like,” which would have provided a basis for exercising a peremptory challenge if he “could not clarify [that] issue” during voir dire. This reason did not satisfy the prosecution’s burden; it “amounted to little more than a denial of discriminatory purpose and a general assertion of good faith.”
People v. Dung Vo
Reversed and remanded for a new trial.
First, the lower court improperly precluded Mr. Vo from presenting evidence tending to establish that the complainant had a reason to fabricate the allegations. The prosecution conceded this error.
Second, the court erred in permitting the prosecution to present prompt outcry testimony that exceeded the proper scope of such testimony.
The Court concluded that “either error, alone, would justify reversal and that the cumulative effect of the errors denied defendant a fair trial.”