OAD Appellate Update (October 23 to November 5, 2018)

Appellate Update (October 23, 2018 to November 5, 2018)

Court of Appeals

  • People v. Jakim Grimes (Oct. 23, 2018)
    • Opinion by Judge Di Fiore with Judges Stein, Fahey, Garcia and Feinman concurring; Judge Wilson dissents in an opinion joined by Judge Rivera

The Court of Appeals previously held in People v Andrews (2014) that an attorney’s failure to file a timely criminal leave application to the Court of Appeals within thirty-days or to move within the one-year grace period for an extension to cure the error did not deprive a Defendant of their federal constitutional right to the effective assistance of counsel. Andrews therefore found that a defendant cannot use the writ of coram nobis to abrogate the one-year time limitation of CPL 460.30. Andrews left open the question of whether the standard is the same under the New York State Constitution (Art. 1 § 6). In People v. Grimes, the Court of Appeals held that the rule is the same. The majority arguably went even further, however, holding that “there is no state constitutional right to legal representation on an application for leave to appeal to [the Court of Appeals].” (Op. at 22).

The facts were fairly straight-forward: Mr. Grimes pleaded guilty to criminal possession of a controlled substance. His conviction was timely appealed and affirmed by the Fourth Department. The day after receiving the Fourth Department’s decision, Mr. Grimes’s attorney wrote to him to say that he was in the process of drafting a leave application to the Court of Appeals and that Mr. Grimes would “receive it shortly.” Over a year later, Mr. Grimes was released from prison and asked his attorney about the status of the leave application. Counsel moved for coram nobis relief in the Appellate Division, requesting an extension of time to file a leave application on the grounds that Mr. Grimes was denied his right to due process and to counsel under the state and federal constitutions. Counsel represented that due to “law office failure and [his] lack of oversight” the leave application was not filed and the case was mistakenly closed. Counsel noted that Mr. Grimes relied on this representation and could not have reasonably discovered that his rights were not preserved within one year. The Fourth Department denied the application and Mr. Grimes appealed.

The Court of Appeals affirmed. The majority bases its decision on a few principles. First, it differentiates a “first-tier appeal” (direct appeal) from a “second-tier appeal” to the Court of Appeals – the former being “an integral part of the. . .trial system for finally adjudicating the guilt or innocence of a defendant” (quoting Griffin v. Illinois, 351 US 12 (1956)) and the latter coming after “the defendant has the benefit, from the perfection of the first-tier appeal, of a prepared or original record of the trial court proceedings, briefs by both counsel on the merits of the errors that allegedly occurred at trial, and the written opinion of the intermediate appellate court determining the validity of the conviction.” The majority says that the “critical issue” in a second-tier appeal is not whether there was a correct adjudication of guilt, but whether there is a significant public interest in the subject matter of the appeal or whether the cases poses legal principles of major significance. The majority further notes that there is no constitutional right to appeal to the Court of Appeals other than in a death penalty case, and says that the legislature sets the court’s jurisdiction and concludes there is no reason to abrogate that jurisdiction here.

Judge Wilson disputes all of this in a dissent joined by Judge Rivera – framing the issue in this case as: “when New York has provided counsel to represent a defendant in preparing a [criminal leave application], does the defendant have a constitutional right that counsel meet established standards of effectiveness?” (Dissent at 2). Judge Wilson answers this question in the affirmative – tracing the right to counsel under the New York constitution, observing that the Court of Appeals has recognized an exception to the time limits in CPL 460.30 before, and questioning the majority’s interpretations of the federal cases that it relies on. The dissent includes this memorable sentence: “Daunting is the prospect of explaining to the citizens of New York why the only time we tolerate ineffective lawyers is when they are petitioning the highest court to hear issues of ‘significant public interest’ or to decide ‘legal principles of major significance’[.]” (Dissent at 7, quoting majority op. at 13).

First Department

  • People v. Brith (Oct. 30, 2018) (criminal sale of controlled substance / for-cause juror challenge)
    • Acosta, J.P., Friedman, Kapnick, Webber, Moulton

The First Department unanimously reversed the Defendant’s conviction for criminal sale of a controlled substance in the third degree and criminal sale of marijuana in the fourth degree and remanded for a new trial. The trial judge (Judge Clott) denied the Defendant’s for-cause challenge to a prospective juror who “repeatedly expressed a predisposition to credit police testimony, and a belief that innocent defendants would testify on their own behalf.” The juror’s statements reflected an inability to be fair and impartial, and there was no “unequivocal assurance” that the prospective juror could set aside his beliefs to render an impartial verdict.

  • People v. Crovador (Oct. 30, 2018) (third degree robbery / Boone cross-racial witness ID jury instruction)
    • Sweeny, J.P., Mazzarelli, Kahn, Oing, and Singh

The Defendant’s conviction for third degree robbery and petit larceny was unanimously reversed on the law and remanded for a new trial. The trial case hinged on the accuracy of the victim’s cross-racial ID of the Defendant with no corroborating evidence to connect the Defendant to the crime. After a Frye hearing, the trial judge (Judge Yearwood) improperly precluded expert testimony on the inaccuracy of cross-racial IDs, even though the expert testimony at the Frye hearing sufficiently established that this principle is generally accepted in the relevant scientific community, and the prosecution “d[id] not dispute that this phenomenon applies to identifications of certain racial groups.” The First Department also found that the trial judge improperly denied the Defendant’s explicit request for a jury instruction on cross-racial IDs.

The First Department significantly found that the new rule announced by the Court of Appeals in People v. Boone requiring such a jury instruction “should be applied retroactively to cases pending on direct appeal.”

Second Department

  • People v Medina (Oct. 24, 2018) (SORA court “sexual predator” designation)

The Second Department reversed the SORA court’s sua sponte “sexual predator” designation because it was neither recommended by the Board of Examiners nor sought by the People. However, there was no error in the SORA court’s declining the Defendant’s request for the appointment of an expert psychiatrist or psychologist to assist him in seeking a downward departure.

  • People v Williams (Oct. 24, 2018) (plea upheld, notwithstanding exclusion from Shock)

Although the plea court told the Defendant that it would not oppose the Defendant’s inclusion in the Shock program, the Second Department held that the Defendant’s plea was not rendered invalid when he was ultimately not admitted to the Shock program. The plea transcript established that neither the Defendant’s eligibility for Shock, nor his ultimate admission to Shock, were a condition of his plea. Notwithstanding that this issue survived the Defendant’s valid plea wavier, his conviction was affirmed.

The Defendant’s conviction for aggravated unlicensed operation of a motor vehicle (VTL § 511(3)(a)(ii)) was reversed and new trial was ordered. In order to establish the Defendant’s knowledge that his license had been suspended in 1999, the People called a supervisor from the Department of Motor Vehicles to testify about the DMV’s general process for mailing notices of revocation and suspension. The DMV supervisor also read into the record an affidavit sworn out in 2012 that stated that “upon information and belief” the DMV mailed notice to the Defendant in 1999. However, the supervisor admitted that she had no personal knowledge of the mailing to the Defendant herself, and the People did not produce an original affidavit of mailing from 1999.

The Second Department held that the Defendant’s right to confrontation was violated because he was never afforded the opportunity to cross-examine a DMV employee who had personal knowledge of his driving record or who was directly involved in sending out suspension notices.

  • People v. Johnson (Oct. 24, 2018) (robbery / right to counsel violation at police line-up)

The Defendant’s conviction for robbery in the first degree and robbery in the second degree was reversed and a new trial was ordered for the violation of the Defendant’s right to counsel.

On January 13, 2012, there was a robbery committed by one man at a grocery store. Four days later, on January 17, two men robbed an “apparel store.” Two witnesses from the grocery store identified the Defendant through a police lineup, and another witness identified the Defendant through a photo array. “Other evidence” apparently established the Defendant as one of the perpetrators of the apparel store robbery.

The Second Department found that the Defendant’s right to counsel was violated when the detective who conducted the line-up failed to notify Defendant’s counsel of the line-up or afford counsel a reasonable opportunity to attend. While people generally do not have the right to counsel at pre-accusatory, investigatory line-ups, the Defendant here had the right to counsel because the detective became actually aware that the Defendant was represented by an attorney on the case being investigated two hours before the line-up was conducted. The identification therefore should have been suppressed by the trial court. A new trial was ordered on the grocery store robbery, because the other evidence of the defendant’s identity as the person who committed the grocery store robbery was not overwhelming and the court therefore could not assess whether the admission of the line-up evidence affected the verdict.

The court also ordered a new trial on the apparel store robbery because of the “spillover effect” from improper admission of the grocery store line-up evidence.

  • Invalid Appeal Waivers: The Second Department held several waivers of the right to appeal to be invalid: People v. Robert Prude (10/24/2018) (record failed to establish that the Defendant understood the distinction between appeal rights and trial rights, and also Supreme Court failed to ascertain whether the Defendant read the waiver, discussed it with counsel, or was aware of its contents); People v. Gregory Posy (10/24/2018) (no knowing waiver where the colloquy “improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish” and the court failed to establish that the Defendant had read the written wavier); People v. Rodney Pierre (10/24/2018) (appeal waiver invalid where Supreme Court’s comments at the plea allocution improperly suggested that the right to appeal is “automatically extinguished upon the entry of a plea of guilty” and the record otherwise failed to indicate that the Defendant understood the difference between the right to appeal and the trial rights that he was waiving by entering his plea).

Third Department

  • People v. Hernandez (Oct. 25, 2018) (assault, criminal possession of a weapon / weight of the evidence / justification defense)

The Defendant’s convictions for assault in the first degree and criminal possession of a weapon in the fourth degree, following a non-jury trial, were reversed on the facts and the indictment was dismissed. Although the Defendant’s challenge to the legal sufficiency of his conviction was unpreserved, the court found the conviction to be against the weight of the evidence.

The Defendant was convicted of stabbing his estranged wife’s new boyfriend, who the wife began dating prior to her separation from the Defendant, on Christmas Eve 2010. The Defendant, his ex-wife, and her boyfriend (the victim) were the only witnesses to the stabbing. Each person offered a “sharply conflicting” account of the event: the Defendant testified that the victim initiated the altercation and that the victim was stabbed by his own knife, while the victim testified that the Defendant jumped on him, threw him to the ground, started hitting him and stabbed him in the chest, and that the attack was entirely unprovoked.

The trial court rejected the Defendant’s justification defense based on the victim’s testimony that the Defendant started the fight and was the first to use a knife – which would have permitted the Defendant to retreat with complete personal safety before using deadly force. However, at sentencing, the court “expressed a contrary finding” and stated that the Defendant had not brought the knife to the scene and had wrested the knife from the victim during the struggle. The Third Department accepted the trial court’s “implied finding that the victim was the first to use deadly physical force,” which meant that the Defendant had no duty to retreat until the victim did so. Independently assessing the proof, the Third Department found that the Defendant’s justification defense was not inconsistent with the Defendant’s account of what happened, and the People failed to carry the burden of proving that the Defendant’s actions were not justified beyond a reasonable doubt.

The Third Department found the Defendant’s plea to the charges of criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the second degree to be involuntary because the plea allocution was insufficient. Although there is no “mandatory catechism,” the trial court conducted an “abbreviated colloquy” that included “only a passing reference to certain rights that the defendant was forfeiting by pleading guilty.” Specifically, the trial court failed to mention the Defendant’s right to confront witnesses at trial, his privilege against self-incrimination at trial, and did not establish that the Defendant consulted with his attorney about forfeiting these rights. The Third Department found this claim to be unpreserved because the Defendant’s post-plea motion to withdraw his plea was grounded in other arguments. Nevertheless, the court reviewed the claim in the interest of justice, noted that it survived the Defendant’s appeal waiver, without deciding whether the waiver was valid, and reversed the judgment and remitted to the Supreme Court.