An uneventful week in the Circuit, with no precedential decisions, and only two summary orders in criminal cases, with neither offering defendants any relief or breaking new ground.
In the state courts, the Court of Appeals released its first decision from its Fall term, with an interesting Brady reversal in the memorandum decision in Rong He. There were also an assortment of reversals in the four NY Appellate Divisions. AD2’s thoughtful decision in Watts, in particular, is worth reading.
Second Circuit
On Tuesday, in United States v. Uribe-Jiminez, in a summary order, the Circuit affirmed defendant’s EDNY convictions, following a guilty plea before Judge Raymond Dearie. CA2 rejected defendant’s contention that he was forced to plead guilty out of concern that his attorney was unprepared to go to trial and that the district court abused its discretion in denying his motion to withdraw his guilty plea on the that ground.
After initially seeking to replace his attorney in May 2016, defendant agreed to continue with his then counsel as long as his counsel could be prepared for an August 8 trial. Defendant, thereafter, raised no further concerns about his counsel prior to his plea on August 3, 2016, despite having multiple opportunities to do so. At the change of plea hearing on August 3, defendant assured the judge that he was satisfied with both his counsel and separate independent counsel who had been appointed for him, and that he was entering his guilty plea voluntarily and not because he’d been forced to do so. Defendant did not raise a complaint about his lawyer or move to withdraw his plea until seven months later. The Circuit found that, under these circumstances, the court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea.
The Circuit’s decision can be found here.
On Thursday, in United States v. Rivera, in a summary order, the Circuit affirmed defendant’s SDNY conspiracy to commit murder for hire and possessing a firearm in relation to a crime of violence convictions before Judge Paul A. Englemayer. The Circuit rejected defendant’s challenges to (1) the
sufficiency of the evidence that he engaged in interstate travel with the intent to commit murder for hire, (2) the court’s decision to admit testimony concerning defendant’s prior criminal activity, including extortion, robbery, and attempted kidnapping, (3) the court’s limitation on his ability to cross-examine a police witness about the adequacy of his investigation into an alternate suspect, (4) the court’s refusal to instruct the jury that it could consider a witness’s prior silence or inaction that was inconsistent with trial testimony as relevant to the witness’s credibility, and (5) the district court’s decision to exclude him from the exercise of peremptory challenges in the judge’s robing room and sidebar conversations held during jury selection and trial.
Defendant instructed a co-conspirator to “get someone” to kill the victim. The co-conspirator acted on those instructions by traveling from New York to Puerto Rico to recruit the shooter. Defendant paid for the co-conspirator’s interstate travel. Viewing this evidence in the light most favorable to the government, CA2 found that the government had introduced evidence from which a rational trier of fact could conclude beyond a reasonable doubt that defendant caused another to travel interstate with the intent to hire a hitman.
In evaluating the admission of defendant’s prior criminal activity under FRE 404(b), CA2 found that the District Court had not abused its discretion. CA2 found that the evidence had been admitted for a proper purpose – to provide background information on the development of the criminal conspiracy and the motive for the murder – it was highly probative of several contested issues and it was not unfairly prejudicial. Further, the District Court mitigated any prejudicial effects with proper limiting jury instructions.
CA2 found that the District Court did not abuse its discretion in limiting cross examination of one police witness regarding a threatening phone call the victim had received prior to his death. CA2 agreed with the District Court that the danger of jury confusion substantially outweighed the phone call’s probative value, and that the evidentiary ruling narrowly precluded defendant from eliciting a single hearsay statement. This modest restriction did not violate defendant’s Sixth Amendment Rights.
CA2 found defendant’s argument regarding the jury instruction unavailing because the substance of defendant’s request was given by the court in its own language.
Finally, in light of the District Court’s transparency about the jury selection proceedings that would be held outside of defendant’s presence, CA2 found that the District Court did not err, let alone plainly, by treating defendant’s failure to object as a waiver of his right to be present. CA2 found the same to be true regarding defendant’s exclusion from later ex parte sidebar discussions.
The Circuit’s decision can be found here.
New York Court of Appeals
On Thursday, in People v. Rong He, in a memorandum decision, NYCA reversed defendant’s Kings County assault and weapons possession convictions. NYCA found that the People violated Brady by failing to provide defendant meaningful access to favorable witnesses.
The People objected to defendant’s pre-trial request for the direct disclosure of the witnesses’ contact information, and instead offered to provide the witnesses with defense counsel’s information. NYCA found that this approach would not have provided defendant with adequate means for defense counsel to investigate those witnesses’ statements. At the time of the request, the People did not bring forth any evidence that defendant presented a risk to the requested witnesses. Consequently, NYCA found, there was no apparent reason for implementing protective measures or otherwise insulating the contact information from disclosure in the face of defendant’s clear right to discover potentially material witnesses. NYCA found that the People’s refusal to disclose the contact information, or to provide any means for defense counsel to contact the witnesses other than through the prosecution itself, was tantamount to suppression of the requested information.
NYCA also found that the suppressed evidence was material. Defendant had made a specific request for the material and both witnesses’ statements, if true, would have contradicted the People’s theory of the case. Therefore, there was a reasonable possibility that defendant’s access to the witnesses would have affected the outcome of the trial.
NYCA’s decision can be found here.
Appellate Division, First Department
On Thursday, in People v. Caviness, AD1 reversed defendant’s New York County weapons possession conviction, in the interest of justice, because the conviction rested upon defendant’s possession of a gravity knife. The People agreed that the indictment should be dismissed “under the particular circumstances of the case and in light of recent legislation amending Penal Law § 265.01 to effectively decriminalize the simple possession of gravity knives.” While AD1 reversed the conviction, it gratuitously added that the decriminalization of the possession of gravity knives did not apply retroactively, an issue that was not necessary to its holding and is surely debatable as a matter of law.
AD1’s decision can be found here.
Appellate Division, Second Department
On Wednesday, in People v. Watts, AD2 reversed defendant’s Queens County course of sexual conduct against a child, sexual abuse, forcible touching, and endangering the welfare of a child convictions. In doing so, AD2 found that supreme court erroneously ruled that defense counsel’s attempts to impeach
prosecution witnesses with the fact that they had filed civil lawsuits, and therefore had a financial interest in accusing defendant, opened the door to allegations of uncharged complaints made by other students that defendant had engaged in inappropriate contact with students.
AD2’s decision can be found here.
Appellate Division, Third Department
On Thursday, in People v. Roberts, AD3 reversed defendant’s Broome County violation of probation conviction, finding that his plea to the probation violation was not knowing, voluntary, and intelligent and that county court failed to exercise its discretion in sentencing him.
The People’s final plea offer to the VOP came with a prison sentence of 1½ years followed by six years of PRS. When defendant indicated that he wanted to admit to the probation violation and argue for a more lenient sentence, county court stated that it could not “override” the recommended sentence unless defendant declined the offer and proceeded to a hearing. The court further told defendant that, if he took the offer, it was “up to the People” as to whether a lesser sentence could be considered. The People then turned down defendant’s proposal to cap his sentencing exposure at 1½ years in prison and stated that they would recommend a higher sentence if defendant rejected the offer and were found guilty following a hearing. Defendant thereafter accepted the offer.
AD3 found that county court abdicated its responsibility to consider all facts available to it at the time of sentencing and fashion an appropriate sentence. While AD3 would ordinarily have only remitted for a resentencing, it found that the proceedings were also marred by the People’s inappropriate threat to seek a harsher sentence if defendant rejected the offer and was found guilty after a hearing. As a result, the plea itself was involuntary, warranting its vacatur.
AD3’s decision can be found here.
In People v. Coss, AD3 reversed defendant’s Rennselaer County driving while intoxicated and aggravated unlicensed operation of a motor vehicle convictions, finding that the SCI to which he pleaded guilty was invalid because it contained a charge for which he was not being held for grand jury action.
Defendant had two prior convictions for driving while intoxicated. He was charged by felony complaint with the class-E felonies of driving while intoxicated and aggravated unlicensed operation of a motor vehicle. He waived indictment and consented to be prosecuted by an SCI charging him with the class-D felony of driving while intoxicated after having been convicted of that offense twice in the preceding 10 years, and the class-E felony of aggravated unlicensed operation of a motor vehicle. He pleaded guilty to both felony counts as charged in the SCI and waived his right to appeal. County court sentenced him to a prison term of 2 to 6 years for driving while intoxicated and a lesser concurrent term on the unlicensed operation conviction. Because defendant was not being held on the class-D felony when he pleaded to the SCI, the SCI and the plea were invalid.
AD3’s decision can be found here.
In People v. Jackson, AD3 reversed defendant’s Albany County rape conviction, finding that supreme court erroneously denied two for cause challenges to prospective jurors. One prospective juror repeatedly stated that her sympathies would lie with youth (the alleged victim was 20 years old), whom she taught, and never unequivocally stated that she could be fair. The other prospective juror stated that “I’d like to say I could be impartial, but until everything comes out it’s difficult to say.” Because neither were rehabilitated, it was error to deny defendant’s for-cause challenges.
AD3’s decision can be found here.
Appellate Division, Fourth Department
Last Friday, in People v. Dibble, AD4 reversed defendant’s Ontario County attempted menacing of a police officer conviction, finding that attempted menacing was not a legally cognizable crime. A person is guilty of menacing a police officer or peace officer when he intentionally places or attempts to place a police officer in reasonable fear of physical injury, serious physical injury or death. See Penal Law § 120.18. Because attempt is already an element of the offense, and one cannot attempt to attempt, attempted menacing of a police officer is not possible.
AD4’s decision can be found here.
In People v. Kniffin, AD4 reversed defendant’s Ontario County criminal mischief conviction, finding that the single count indictment was rendered duplicitous by the trial evidence. The indictment charged defendant with damaging “the road surface at the intersection of Woolhouse Road and County Road #32”. The evidence showed that defendant could have committed two distinct offenses by damaging two different portions of the road at that intersection at two different times. AD4 reversed because the jury may have convicted defendant of an unindicted act of criminal mischief, or different jurors may have convicted defendant based on different acts.
AD4’s decision can be found here.