People v Watson, 2011 NY Slip Op 09729 [4th Dept 2011] [available here]
The defendant in Watson was convicted of criminal possession of a weapon in the second degree for possessing a handgun. Naturally, the main issue at trial was whether Watson actually possessed the gun. The police questioned the defendant, and he consented to a search "that yielded the gun" at issue. The fact that the police found the gun in Watson's immediate vicinity was probably a fairly compelling piece of evidence that Watson did, in fact, possess the gun.
One problem for the prosecution: Watson consented to the search after his right to counsel had attached, and his attorney was not present when he consented to the search. This is clear error, and should have led to suppression of the gun and ammunition at trial. The trial court allowed the gun and ammunition in evidence anyway, and the defendant argued on appeal that this error required reversal and a new trial.
The Fourth Department "assumed" the trial court erred, but found the error harmless, holding "there [was] no reasonable possibility that the constitutional error in failing to suppress the gun and the ammunition might have contributed to the conviction, and thus the error is harmless beyond a reasonable doubt." The decision provides no further discussion.
Pondering the Court's conclusion for more than a few moments induces a sort of logical vertigo. What jury in the world would not strongly consider the fact that the actual gun and ammunition was found on the defendant as pretty damning evidence that the defendant possessed the gun? If an error of that magnitude is found harmless, then what does a defendant need to demonstrate to actually win on appeal?
25 January 2012
23 January 2012
An appellate court's favorite words: "not preserved"
People v Borden, 2011 NY Slip Op 09719 [4th Dept 2011] [available here]
The Appellate Division Fourth Department* calls itself a "court of correction," and it takes that role seriously. The Court does not go out of its way to reach interesting legal issues, and will not stretch in the slightest to decide a case on the merits if there is any way to avoid it. This is not meant as a criticism of the Court, but rather as an observation. Given the Fourth Department's stinginess, it puts the onus on trial counsel to preserve every possible issue in every conceivable way.
Sometimes, though, there is simply no way to preserve an issue for appeal while simultaneously minimizing the damage for your client at trial. A case in point is People v Borden, decided last month by the Fourth Department. The prosecutor in Borden engaged in fairly serious misconduct during his closing argument to the jury, commenting negatively on the defendant's choice not to testify at trial. The prosecutor's comments were more egregious given a police officer's testimony earlier in the trial that the defendant had invoked his right to remain silent upon being arrested.**
Defense counsel objected, and requested "either a mistrial or a curative instruction with respect to the comment." The trial judge declined to grant the mistrial, but did give a curative instruction.*** Defense counsel did not further object to the curative instruction.
The Fourth Department refused to consider whether defendant was denied a fair trial based on the prosecution's comment, holding that "the curative instruction must be deemed to have corrected the error to the defendant's satisfaction" because defense counsel failed to further object after the trial court gave the curative instruction.
This is asking a bit much of defense counsel. Keep in mind, the Fourth Department is not saying that what the prosecutor did was acceptable. The Court assumes (rightly) that the prosecutor engaged in pretty serious misconduct. Defense counsel asked for a mistrial, and the trial court refused to grant it. Was defense counsel to refuse an offered curative instruction at that point, just so that he could be sure the issue would be preserved on appeal if the jury convicted his client?
A curative instruction is not ideal in that situation, but it is better than nothing. Asking for a mistrial, and then settling for a curative instruction when the mistrial request is denied, should be enough to preserve the issue for appellate review. It is simply not fair to require a trial counsel to choose between mitigating fallout from a prosecutor's misconduct at the trial level on the one hand, and preserving his client's appellate rights on the other.
* The Appellate Division, Fourth Department is the first appellate stop for most folks convicted of a crime (or on the bad end of a civil judgment) in Monroe County and the surrounding area.
** The idea being that a defendant's choice to exercise his fundamental rights cannot be held against him at trial.
*** A curative instruction means, basically, that the judge tries to "un-ring the bell" by telling the jury to ignore what it just heard. This works about as well as you would expect.
The Appellate Division Fourth Department* calls itself a "court of correction," and it takes that role seriously. The Court does not go out of its way to reach interesting legal issues, and will not stretch in the slightest to decide a case on the merits if there is any way to avoid it. This is not meant as a criticism of the Court, but rather as an observation. Given the Fourth Department's stinginess, it puts the onus on trial counsel to preserve every possible issue in every conceivable way.
Sometimes, though, there is simply no way to preserve an issue for appeal while simultaneously minimizing the damage for your client at trial. A case in point is People v Borden, decided last month by the Fourth Department. The prosecutor in Borden engaged in fairly serious misconduct during his closing argument to the jury, commenting negatively on the defendant's choice not to testify at trial. The prosecutor's comments were more egregious given a police officer's testimony earlier in the trial that the defendant had invoked his right to remain silent upon being arrested.**
Defense counsel objected, and requested "either a mistrial or a curative instruction with respect to the comment." The trial judge declined to grant the mistrial, but did give a curative instruction.*** Defense counsel did not further object to the curative instruction.
The Fourth Department refused to consider whether defendant was denied a fair trial based on the prosecution's comment, holding that "the curative instruction must be deemed to have corrected the error to the defendant's satisfaction" because defense counsel failed to further object after the trial court gave the curative instruction.
This is asking a bit much of defense counsel. Keep in mind, the Fourth Department is not saying that what the prosecutor did was acceptable. The Court assumes (rightly) that the prosecutor engaged in pretty serious misconduct. Defense counsel asked for a mistrial, and the trial court refused to grant it. Was defense counsel to refuse an offered curative instruction at that point, just so that he could be sure the issue would be preserved on appeal if the jury convicted his client?
A curative instruction is not ideal in that situation, but it is better than nothing. Asking for a mistrial, and then settling for a curative instruction when the mistrial request is denied, should be enough to preserve the issue for appellate review. It is simply not fair to require a trial counsel to choose between mitigating fallout from a prosecutor's misconduct at the trial level on the one hand, and preserving his client's appellate rights on the other.
* The Appellate Division, Fourth Department is the first appellate stop for most folks convicted of a crime (or on the bad end of a civil judgment) in Monroe County and the surrounding area.
** The idea being that a defendant's choice to exercise his fundamental rights cannot be held against him at trial.
*** A curative instruction means, basically, that the judge tries to "un-ring the bell" by telling the jury to ignore what it just heard. This works about as well as you would expect.
20 January 2012
Safe Driver Lesson One: Stay Awake
Kuebler v Kuebler, 2011 NY Slip Op 09693 [4th Dept 2011] [available here]
I imagine most parents dread teaching their teen children to drive. It seems crazy to cede control of an expensive machine, capable of inflicting wanton death and destruction if used incorrectly, to a teenager, a creature practically guaranteed, by combination of hormones and undeveloped frontal lobes, to make bad decisions. And to have to actually ride along as a glorified child tries to master the basics of operating a complex machine at high speeds? Ludicrous.
But, most parents hopefully do not have it as bad as the dad in Kuebler v Kuebler. Mr. Keubler let his 16-year-old child, proud owner of a learner's permit, drive the family car, with Mr. Keubler riding along as the required licensed driver supervisor.
Things did not end well. Nor did they particularly start well. Within five minutes of leaving home, the 16-year-old fell asleep at the wheel and crashed the car into a tree. Dad was injured, and sued his son for damages.* The dad asked the trial court to find that his son's actions--you know, falling asleep and driving off the road--were the sole, 100% cause of his injuries, and that the father's damages should not be reduced for any contributory negligence on his part. The trial court agreed, and the son appealed.
The Fourth Department reversed, holding that the father was no mere passenger. He was duty-bound, as the only licensed driver in the vehicle, to supervise his son and to "take necessary measures to prevent negligence on the part of the driver with the learner's permit." This included, apparently, making sure that his son did not fall asleep at the wheel. There was proof that the father did not closely supervise his son, and in fact "was preoccupied with reviewing a list on a piece of paper" and did not even know things were going pear-shaped until he felt the vehicle leave the roadway. Given those facts, the Fourth Department held that the jury should be free to consider whether the father contributed to his injuries by his own failure to properly supervise his son.
Justices Carni and Lindley wrote a separate concurrence, and would also have held that the father's damages could be reduced because he assumed the risk of driving with his 16-year-old son, the same way a sky diver or bungee jumper takes the risk that the ultra-dangerous activity will result in injury. This seems about right.
*This seems weird, and it is, but it happens when a parent needs to get at the proceeds of an insurance policy covering the child.
I imagine most parents dread teaching their teen children to drive. It seems crazy to cede control of an expensive machine, capable of inflicting wanton death and destruction if used incorrectly, to a teenager, a creature practically guaranteed, by combination of hormones and undeveloped frontal lobes, to make bad decisions. And to have to actually ride along as a glorified child tries to master the basics of operating a complex machine at high speeds? Ludicrous.
But, most parents hopefully do not have it as bad as the dad in Kuebler v Kuebler. Mr. Keubler let his 16-year-old child, proud owner of a learner's permit, drive the family car, with Mr. Keubler riding along as the required licensed driver supervisor.
Things did not end well. Nor did they particularly start well. Within five minutes of leaving home, the 16-year-old fell asleep at the wheel and crashed the car into a tree. Dad was injured, and sued his son for damages.* The dad asked the trial court to find that his son's actions--you know, falling asleep and driving off the road--were the sole, 100% cause of his injuries, and that the father's damages should not be reduced for any contributory negligence on his part. The trial court agreed, and the son appealed.
The Fourth Department reversed, holding that the father was no mere passenger. He was duty-bound, as the only licensed driver in the vehicle, to supervise his son and to "take necessary measures to prevent negligence on the part of the driver with the learner's permit." This included, apparently, making sure that his son did not fall asleep at the wheel. There was proof that the father did not closely supervise his son, and in fact "was preoccupied with reviewing a list on a piece of paper" and did not even know things were going pear-shaped until he felt the vehicle leave the roadway. Given those facts, the Fourth Department held that the jury should be free to consider whether the father contributed to his injuries by his own failure to properly supervise his son.
Justices Carni and Lindley wrote a separate concurrence, and would also have held that the father's damages could be reduced because he assumed the risk of driving with his 16-year-old son, the same way a sky diver or bungee jumper takes the risk that the ultra-dangerous activity will result in injury. This seems about right.
*This seems weird, and it is, but it happens when a parent needs to get at the proceeds of an insurance policy covering the child.
18 January 2012
Picky homeowner not liable for injuries to tree trimmer
Byrd v Roneker, 2011 NY Slip Op 09716 [4th Dept 2011] [available here]
New York's Labor Law imposes strict liability on property owners for gravity-related injuries* suffered by workers performing construction or renovation on the property. Thankfully for most of us, the Labor Law statute specifically exempts "owners of one and two-family dwellings who contract for but do not direct or control the work." So, you are not strictly liable if the guy you hire to clean your gutters takes a header into the hydrangeas.
In Byrd, the homeowner hired a roofer, and the roofer hired someone to "cut tree branches that extended over the roof." While the tree cutter was clearing the branches, the homeowner pointed out a limb he wanted cut down. When the tree cutter started to cut the branch, the homeowner again interjected, and asked that the branch be cut at its base. When the tree cutter tried to cut the branch at the base, he fell out of the tree, and promptly sued the homeowner under the Labor Law.**
The tree cutter argued that, by directing him to cut a specific branch and then asking it be cut a certain way, the homeowner exercised sufficient control over the tree-cutter's work to overcome the homeowner exception in the Labor Law. Not so much, said the Fourth Department, noting the critical distinction between telling the worker what to do, and telling the worker how to do it. From the decision:
So, good news for fussbudgets everywhere. Feel free to tell your painter he missed a spot; if he falls off the ladder while touching up, it's his problem.
* Think Wil-E Coyote. The Labor Law applies when a worker falls or something falls on the worker. (See e.g. Dipalma v State of New York, 2011 NY Slip Op 09724, also decided this term, and holding that the strict liability imposed by the Labor Law applies even where the very heavy object fell "only one or two feet before it struck claimant.")
** Well, he probably went to the hospital and stuff first.
New York's Labor Law imposes strict liability on property owners for gravity-related injuries* suffered by workers performing construction or renovation on the property. Thankfully for most of us, the Labor Law statute specifically exempts "owners of one and two-family dwellings who contract for but do not direct or control the work." So, you are not strictly liable if the guy you hire to clean your gutters takes a header into the hydrangeas.
In Byrd, the homeowner hired a roofer, and the roofer hired someone to "cut tree branches that extended over the roof." While the tree cutter was clearing the branches, the homeowner pointed out a limb he wanted cut down. When the tree cutter started to cut the branch, the homeowner again interjected, and asked that the branch be cut at its base. When the tree cutter tried to cut the branch at the base, he fell out of the tree, and promptly sued the homeowner under the Labor Law.**
The tree cutter argued that, by directing him to cut a specific branch and then asking it be cut a certain way, the homeowner exercised sufficient control over the tree-cutter's work to overcome the homeowner exception in the Labor Law. Not so much, said the Fourth Department, noting the critical distinction between telling the worker what to do, and telling the worker how to do it. From the decision:
There is no direction or control if the owner informs the worker what work should be performed, but there is direction and control if the owner specifies how that work should be performed.(Byrd, 2011 NY Slip Op 09716.)
Here, although defendant instructed plaintiff to cut down the tree limb in question and told him to cut the limb at its base, there is no evidence that defendant told plaintiff how to perform the task, nor did defendant provide plaintiff with any tools or equipment. In fact, it is undisputed that defendant was inside the house when plaintiff fell. The mere fact that defendant told plaintiff that he wanted the limb cut at its base, rather than where plaintiff initially had begun to cut the limb, does not subject him to liability under Labor Law 240[1] or 241[6].
So, good news for fussbudgets everywhere. Feel free to tell your painter he missed a spot; if he falls off the ladder while touching up, it's his problem.
* Think Wil-E Coyote. The Labor Law applies when a worker falls or something falls on the worker. (See e.g. Dipalma v State of New York, 2011 NY Slip Op 09724, also decided this term, and holding that the strict liability imposed by the Labor Law applies even where the very heavy object fell "only one or two feet before it struck claimant.")
** Well, he probably went to the hospital and stuff first.
27 September 2011
Can you hear the sirens now?
Once upon a time in New York, the police could only issue a ticket for using a cell phone while driving if the motorist also committed some additional, different violation of the Vehicle & Traffic Law. A cop could always pull you over if he saw you chatting on your cell phone, but if you were not otherwise breaking the law, the worst the officer could do was give you a warning and send you on your way.
That all changed this summer. The Legislature amended the VTL to upgrade "Use of a mobile telephone" while driving to a primary offense, meaning that an officer may issue a ticket for using a cell phone while driving even if he observes no other violation of the VTL. (See N.Y. Veh. & Traffic Law 1225-c.) The revisions were effective July 12, 2011.
Simply "holding a mobile telephone to, or in the immediate proximity of, the user's ear" is considered "using" a cell phone for the purposes of the law. (See Veh. & Traf. 1225-c[1][c].) A driver holding a cell phone "to, or in the immediate proximity of his or her ear while such vehicle is in motion" is presumed to be "engaging in a call" for purposes of the law. (See Veh. & Traf. 1225-c[2][b].) This eliminates the popular "you can't prove I was making a call" defense. The section does not apply if the motorist is using the cell phone for certain emergency calls, or to police officers using a cell phone "in the performance of their official duties." (See Veh. & Traf. 1225-c[3].)
The maximum fine for a cell phone ticket is $100, and a violation adds 2 points to the driver's DMV record. (See here for the full table of points for specific traffic violations.)
That all changed this summer. The Legislature amended the VTL to upgrade "Use of a mobile telephone" while driving to a primary offense, meaning that an officer may issue a ticket for using a cell phone while driving even if he observes no other violation of the VTL. (See N.Y. Veh. & Traffic Law 1225-c.) The revisions were effective July 12, 2011.
Simply "holding a mobile telephone to, or in the immediate proximity of, the user's ear" is considered "using" a cell phone for the purposes of the law. (See Veh. & Traf. 1225-c[1][c].) A driver holding a cell phone "to, or in the immediate proximity of his or her ear while such vehicle is in motion" is presumed to be "engaging in a call" for purposes of the law. (See Veh. & Traf. 1225-c[2][b].) This eliminates the popular "you can't prove I was making a call" defense. The section does not apply if the motorist is using the cell phone for certain emergency calls, or to police officers using a cell phone "in the performance of their official duties." (See Veh. & Traf. 1225-c[3].)
The maximum fine for a cell phone ticket is $100, and a violation adds 2 points to the driver's DMV record. (See here for the full table of points for specific traffic violations.)
15 July 2011
Prompt means prompt: navigating New York's prompt suspension law
In New York, if you are arrested for DWI and your blood alcohol content is over .08% , you must surrender your license at arraignment* if the judge finds "that the accusatory instrument** is sufficient on its face" and there is "reasonable cause to believe that the driver operated a motor vehicle with a blood alcohol level in excess of [.08] of 1% as evidenced by the results of a chemical test." (Schermerhorn v Becker, 64 AD3d 843, 846 [3d Dept 2009]; VTL 1193[7]b].) A defendant is entitled to a hearing to determine if reasonable cause exists to believe his or her BAC is above .08%.
The timing of the prompt suspension is important, but often overlooked. The prompt suspension must happen at arraignment. If the arraignment concludes--i.e. if the defendant enters a not guilty plea and the judge does not expressly hold the arraignment open--then the judge loses the power to suspend the defendant's license pending prosecution under the prompt suspension law. (See VTL 1193[7][b] ["The suspension . . . shall occur not later than at the conclusion of all proceedings required for the arraignment"].)
Often, the arraignment happens within hours or days after arrest, and the Court simply does not receive the supporting paperwork necessary to establish a BAC of .08 or higher--typically the certified breathalzyer results for a breath test, or lab results for a blood draw--in time for the arraignment. The Court should not suspend a defendant's license if it does not have reliable, first-hand evidence of the defendant's BAC level.
But what if the judge decides to go ahead with the arraignment without suspending a defendant's license, but later receives the appropriate supporting documents? Can the judge suspend the defendant's license at a later court date once it receives evidence that the defendant's blood alcohol content exceeds .08%?
No. Clark Zimmermann, Jr. a partner in my office, recently had just such a case. The judge who arraigned his client in Town Court did not suspend the client's license, because the Court had not received the paperwork establishing the BAC level. The client pleaded not guilty, concluding the arraignment.
At the next court date, a different judge took over the matter, and indicated he had now received the BAC paperwork and was going to suspend our client's license pending prosecution at the next court date. We brought an Article 78 proceeding in Supreme Court, basically asking a Supreme Court judge to prohibit the Town Court from suspending our client's license, as arraignment was concluded and under the plain language of the statute the Town Court judge no longer had the authority to suspend our client's license.
The Town Court judge, to his credit, conceded in his response papers that he had no authority to suspend our client's license and would not attempt to do so. As a result, our client gets to keep his license while his case unfolds.
As with most aspects of a DWI case, the devil is in the details. The New York statutory DWI scheme is complex, and it pays to know what your rights are at every step of the way. Far too many defendants simply hand their licenses over to the judge at arraignment, believing that they have no choice but to do so. The Court wants to suspend your license based on a BAC level of over .08%? Make them prove it. If the Court can't prove the BAC level at arraignment, you get to keep your license while the case unfolds. Period.
* An arraignment is the first court appearance. The defendant typically pleads not guilty to whatever charge he/she is facing, bail is set (if appropriate), and the matter is adjourned.
** The accusatory instrument is nothing more than the piece of paper alleging that the defendant committed a specific crime and how he committed it. Every element of the crime, and facts sufficient to establish every element, must be alleged.
The timing of the prompt suspension is important, but often overlooked. The prompt suspension must happen at arraignment. If the arraignment concludes--i.e. if the defendant enters a not guilty plea and the judge does not expressly hold the arraignment open--then the judge loses the power to suspend the defendant's license pending prosecution under the prompt suspension law. (See VTL 1193[7][b] ["The suspension . . . shall occur not later than at the conclusion of all proceedings required for the arraignment"].)
Often, the arraignment happens within hours or days after arrest, and the Court simply does not receive the supporting paperwork necessary to establish a BAC of .08 or higher--typically the certified breathalzyer results for a breath test, or lab results for a blood draw--in time for the arraignment. The Court should not suspend a defendant's license if it does not have reliable, first-hand evidence of the defendant's BAC level.
But what if the judge decides to go ahead with the arraignment without suspending a defendant's license, but later receives the appropriate supporting documents? Can the judge suspend the defendant's license at a later court date once it receives evidence that the defendant's blood alcohol content exceeds .08%?
No. Clark Zimmermann, Jr. a partner in my office, recently had just such a case. The judge who arraigned his client in Town Court did not suspend the client's license, because the Court had not received the paperwork establishing the BAC level. The client pleaded not guilty, concluding the arraignment.
At the next court date, a different judge took over the matter, and indicated he had now received the BAC paperwork and was going to suspend our client's license pending prosecution at the next court date. We brought an Article 78 proceeding in Supreme Court, basically asking a Supreme Court judge to prohibit the Town Court from suspending our client's license, as arraignment was concluded and under the plain language of the statute the Town Court judge no longer had the authority to suspend our client's license.
The Town Court judge, to his credit, conceded in his response papers that he had no authority to suspend our client's license and would not attempt to do so. As a result, our client gets to keep his license while his case unfolds.
As with most aspects of a DWI case, the devil is in the details. The New York statutory DWI scheme is complex, and it pays to know what your rights are at every step of the way. Far too many defendants simply hand their licenses over to the judge at arraignment, believing that they have no choice but to do so. The Court wants to suspend your license based on a BAC level of over .08%? Make them prove it. If the Court can't prove the BAC level at arraignment, you get to keep your license while the case unfolds. Period.
* An arraignment is the first court appearance. The defendant typically pleads not guilty to whatever charge he/she is facing, bail is set (if appropriate), and the matter is adjourned.
** The accusatory instrument is nothing more than the piece of paper alleging that the defendant committed a specific crime and how he committed it. Every element of the crime, and facts sufficient to establish every element, must be alleged.
24 June 2011
SCOTUS: "straw" witness not enough to satisfy confrontation clause
Bullcoming v New Mexico, 564 US __ [available here]
The United States Supreme Court, in a 5-4 majority decision by Justice Ginsberg, held that a forensic laboratory report certifying "that defendant's blood alcohol concentration was well above the threshold for aggravated DWI" is inadmissible unless the analyst who conducted the tests and certified the results testifies at trial. The prosecutor at trial tried to get around the confrontation clause requirement by having "another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample" testify about the test results and introduce the lab report in evidence. Justice Ginsberg says: nice try, but "that surrogate testimony does not meet the constitutional requirement." You need the testimony of the analyst who actually performed the test and certified the results.
Brian Shiffrin has his take on the decision over at New York Criminal Defense. As Brian points out, Justice Sotomayor filed a separate concurrence, and was nice enough to point out all the ways a prosecutor might work around a defendant's confrontation rights in a way that might gain her blessing (and thus tip the balance 5-4 the other way by the time the next confrontation case reaches the high court).
The United States Supreme Court, in a 5-4 majority decision by Justice Ginsberg, held that a forensic laboratory report certifying "that defendant's blood alcohol concentration was well above the threshold for aggravated DWI" is inadmissible unless the analyst who conducted the tests and certified the results testifies at trial. The prosecutor at trial tried to get around the confrontation clause requirement by having "another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample" testify about the test results and introduce the lab report in evidence. Justice Ginsberg says: nice try, but "that surrogate testimony does not meet the constitutional requirement." You need the testimony of the analyst who actually performed the test and certified the results.
Brian Shiffrin has his take on the decision over at New York Criminal Defense. As Brian points out, Justice Sotomayor filed a separate concurrence, and was nice enough to point out all the ways a prosecutor might work around a defendant's confrontation rights in a way that might gain her blessing (and thus tip the balance 5-4 the other way by the time the next confrontation case reaches the high court).
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