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By Stephen N. Preziosi, April 2nd, 2014

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Ineffective Assistance Of Counsel And New York’s CPL Article 440

By Stephen N. Preziosi, March 29th, 2014


People v. Zeh

New York Court of Appeals

Decided March 27, 2014

2014 NY Slip Op 02097

Issue: Whether Defense Counsel was ineffective when he failed to make a pre-trial motion to suppress statements made by the defendant and whether the defendant’s 440 motion for a hearing to determine ineffectiveness should have been granted.

Holding: The Court of Appeals held that there were a number of questionable trial strategies by defense counsel as to why he did not request a hearing to suppress statements or challenge warrants.  The Court found that the defendant should have had the opportunity at a hearing pursuant to CPL Article 440 to establish that his defense counsel was ineffective.

Facts:Defendant Vincent Zeh was questioned by the police at his home and a State Police barracks after his wife was murdered. Search warrants were executed and various items were seized from defendant’s house and automobile. He was eventually charged with killing his wife.

Defendant was represented initially by a retained lawyer but was later assigned a public defender. Subsequently, defendant hired Michael Sussman to serve as his trial counsel. None of the attorneys sought to suppress defendant’s statements to the police or the evidence derived from the searches. Defendant was convicted of intentional murder in the second degree. Although the Appellate Division affirmed, it believed that collateral review under Criminal Procedure Law article 440 would be prudent because of questions raised regarding the adequacy of the defense (289 AD2d 692, 693 [3d Dept 2001]).

As a result of the court’s suggestion, defendant commenced this article 440 proceeding seeking an evidentiary hearing to prove that he had been deprived of meaningful legal assistance. The People obtained an affirmation from trial counsel Sussman, who explained that certain alleged deficiencies in his performance were actually part of his trial strategy. Sussman specifically indicated that he consulted with defendant and they jointly decided not to pursue a suppression motion.

County Court denied the 440 motion without an evidentiary hearing. The Appellate Division affirmed (101 AD3d 1353 [3d Dept 2012]). A Judge of this Court granted defendant leave to appeal (21 NY3d 948 [2013]) and we now reverse.

Legal Analysis: The courts below should have granted defendant an evidentiary hearing based on the facts set forth in the record on direct appeal — including those issues aptly identified in the Appellate Division’s first decision — and the CPL article 440 motion

In response to defendant’s post-conviction claims, Sussman asserted that he declined to request suppression of defendant’s statements to the police primarily because he thought defendant would have to testify at the pretrial hearing. Sussman’s affirmation did not, however, address why suppression could not have been sought on the basis of: the 26-hour interrogation at a State Police barracks, which occurred in a room that may have been locked at times; the possible use of handcuffs, shackles and a “jail suit” during such questioning; and a purported refusal by the police to contact the lawyer who was representing defendant in a pending criminal case because defendant’s request for legal assistance was deemed “too late.”

Nor did Sussman provide an explanation for failing to challenge the various search warrants that were issued or the evidence that was obtained by the police. Sussman also did not attempt to justify several potential trial errors that were noted by the Appellate Division (including the possibility of inadequate discovery requests and the failure to object to prosecutorial conduct that County Court felt compelled to address sua sponte as “grossly improper”). In these particular circumstances, we conclude that there were sufficient questions of fact as to whether Sussman had an adequate explanation for his alleged deficiencies. Defendant is therefore entitled to an opportunity to establish that he was deprived of meaningful legal representation.

Antommarchi Rights Can Be Waived By An Attorney Outside The Presence Of The Defendant

By Stephen N. Preziosi, March 7th, 2014

People v. Flinn 

New York Court of Appeals

2014 NY Slip Op 01260

Decided February 25, 2014

Issue: Whether a defendant can waive his Antommarchi rights to  be present at all conferences with the judge (at side bar as well) orally and through his attorney and outside of his hearing rather than professing the waiver in open court before the judge on the record.

Held:  the Court of Appeals held that a defendant can waive his Antommarchi rights through his attorney without the defendant actually hearing the waiver.

Facts: Defendant was tried for attempted murder and other crimes. Before beginning jury selection, the trial judge announced in defendant’s hearing:

“If there are any conferences at the bench, I just remind everyone the defendant is welcome to attend them, I will leave that up to defense counsel and the defendant as to whether or not he wants to get up and attend any of those conferences.”

“Your Honor, may I just put one thing on the record. Mr. Flinn is remaining at counsel table. I have discussed with him that he has the right to come up here during these discussions at the bench, and he has waived that right.”

Voir dire proceeded, and a number of bench conferences were held at which prospective jurors’ qualifications were discussed. There is no indication in the record that defendant attended, or asked to attend, any of these conferences. Defendant was convicted, and the Appellate Division affirmed

Defendant waived his Antommarchi right both implicitly and explicitly. He did so implicitly when, after hearing the trial judge say that he was “welcome to attend” the bench conferences, he chose not to do so. And he waived it explicitly by his lawyer’s statement to the court.

Legal Analysis: The implicit waiver is not significantly different from the one we upheld in People v Williams (15 NY3d 739 [2010]).

Defendant was free to attend bench conferences if he wanted to do so. This was the important point for him to understand — not whether his opportunity to attend was a right or a privilege.

As for the explicit waiver, we have repeatedly held that a lawyer may waive the Antommarchi right of his or her client (People v Velasquez, 1 NY3d 44, 47-50 [2003]; [because sidebar presence is a statutory, not a constitutional, right, "this Court has been more flexible regarding the acceptable form of voluntary waivers by defendants and their lawyers"]).

Defendant seeks to distinguish these cases on the ground that here the lawyer’s statement waiving the right was not made in defendant’s hearing. But the premise of Velasquez and Keen is that a lawyer may be trusted to explain rights to his or her client, and to report to the court the result of that discussion.

Indeed, in Velasquez, while the client did hear the lawyer’s oral waiver, it is unlikely that he understood it. The only relevant words said in open court in Velasquez were “Waived” by the lawyer and “Antommarchi waived” by the court (1 NY3d at 47).

Accordingly, the order of the Appellate Division was affirmed.

Rosario Rule Violation In New York: The Defendant Must Establish Prejudice

By Stephen N. Preziosi, March 5th, 2014

People v. Martinez

New York Court of Appeals

Decided February 18, 2014  

Issue: Whether the trial judge abused his discretion when he declined to give an adverse inference charge regarding the loss of the handwritten complaint report (commonly referred to as a “scratch 61″) prepared by a police officer who responded to a 911 call reporting a robbery.

Holding: The loss or destruction of Rosario material is not presumptively prejudicial.  Willful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice.  If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault.

Facts: On Friday, July 17, 2009, at roughly 4:00 p.m., 45-year-old Armando Irizarry, Sr. (Irizarry), a self-employed repairman, returned from a job to his apartment on the 14th floor of a high-rise building

Irizarry had lived in the same apartment there for about seven years. He was well-acquainted with defendants, longtime residents of an apartment on the building’s 13th floor. Through the years, he had engaged in casual conversation with them both.

Irizarry owns a Jack Russell terrier, a very nervous dog that “hated” Christopher. When Irizarry left his apartment with the dog to go downstairs and outside to walk her, the terrier would bark at Christopher, who invariably reacted by “run[ning] awkwardly . . . like hopping” as he “back[ed] up away from” the dog, scared. Irizarry also encountered Selbin a few times a week in the building. He noticed that Selbin, too, had “a particular way of walk[ing]” and holding his shoulders.

One evening Irizarry ordered takeout from a Chinese restaurant and gave his son $20 to pay for the food. At about 5:00, he accompanied his son into the 14th floor’s well-lit hallway on the way to the elevator and downstairs to the lobby to pick up the food delivery.

Suddenly, though, a man emerged from the stairwell, dressed from head to toe in black. His face hidden behind a ski mask that exposed only his mouth and eyes, the man also wore sunglasses, a hat and gloves. Armed with a baseball bat, he was closely followed by a second man, similarly clad all in black, with his head and face concealed by a hood and a ski mask that exposed only his eyes. The second man carried a gun.

Irizarry “right away” recognized the first man as Selbin “because of the way he walks” and because he is “really slim and tall.”  Selbin pushed Irizarry and told him to “Give it up.” Now fearful that Selbin and his companion intended harm and sensing that Selbin was ready to swing the bat at him, Irizarry pulled out from his pocket a sock in which he had stuffed a billiard ball. He always carried this makeshift weapon with him for protection.

Irizarry threatened Selbin with the billiard ball, and called out to his son to alert him to the danger. Selbin then walked toward Irizarry’s son, swinging the bat from side to side and signaling him to be quiet by putting a finger up to his mouth and vocalizing “Shh.” As Selbin made this gesture, he inadvertently revealed his mustache.

Irizarry turned his attention to the other man so as “to put space between” that man’s gun and Irizarry’s son. As he advanced, brandishing his billiard ball, the gunman immediately retreated to stairwell B by running backward “just like . . . when he [saw Irizarry's] Jack Russell dog. Exactly the same thing,” which is when and how Irizarry recognized Christopher.

Irizarry “decided to run for [his] life” and “drag[ged his] son with [him], all the way downstairs to the first floor,” where he called 911 at 5:47 p.m. Irizarry told the operator that he thought he knew the perpetrators’ identities, but he did not then name them.

Police Officer Hairo Franco and his partner arrived at the building at 5:55 p.m. and went to Irizarry’s apartment. Irizarry gave the police a description of the perpetrators. He still did not identify either of them by name, however.

They spoke to a detective. During this interview, Irizarry identified Selbin as one of the perpetrators. And at about 7:00 p.m. that evening, they arrived at defendants’ apartment, and discovered Selbin inside, huddling on the floor under a jumble of clothes; he sported a fresh cut and lump on his forehead.

Officer Franco on cross-examination acknowledged that the only “paperwork” or notes he created between the time he first arrived at the Havemeyer address and Selbin’s arrest were to be found in his memo book. When he returned to the precinct after the arrest, he prepared a scratch 61, which he “put in the bin where it gets filed.” Asked if this was “[t]he same file as the other paperwork in this case that was turned over to the prosecutor,” Officer Franco answered “No.” He confirmed that he never gave the scratch 61, the handwritten complaint report, to the prosecutor and did not have it with him. Neither Officer Franco’s memo book nor the typewritten complaint report set out any description of the perpetrators.

At the conclusion of the People’s case, Christopher’s attorney requested the scratch 61 prepared by Officer Franco. The prosecutor indicated that this document had never been turned over to the District Attorney’s office, and, as she understood Officer Franco’s testimony, he could not locate it.

“[Officer Franco] said he put it in the bin where it’s supposed to go and — I would call upon for the production of that (sic). And if that cannot be produced, I would ask that the jury be instructed that they can draw an adverse inference on that.”

After the close of evidence, the following exchange took place:

“THE COURT: I am not going to charge. There is a reason to be said he doesn’t have it any more (sic), and therefore, I’m not going to give you an adverse inference charge.”

As part of the identification charge, the judge instructed the jury that “[w]hen [Irizarry] testified about Selbin Martinez he said he recognized his manner of walking[,] body [] shape and saw a portion of his face.” Selbin’s attorney objected that the trial judge thereby erroneously instructed the jury that Irizarry made a facial identification of Selbin.

Legal Analysis: CPL Section 240.75 prohibits reversal where a defendant has been deprived of Rosario material at a trial or other proceeding absent a reasonable possibility that the nondisclosure materially contributed to the result.

A showing of prejudice is required as a prerequisite to a sanction. Here, defendants argue that they were indeed prejudiced by the unavailability of the scratch, and so the trial judge abused his discretion when he declined to issue an adverse inference charge, the mildest sanction available.

Willful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice.  If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault. The focus, though, is on the need to eliminate prejudice to the defendant.

Here, defendants did not establish prejudice, as is their burden. Defendants fault the trial judge for not analyzing prejudice when he denied their request for an adverse inference charge, but they did not even mention the word. Instead, Christopher’s attorney requested the instruction simply because the scratch 61 could not be produced. The judge essentially (and correctly) ruled that inadvertent loss alone was insufficient to require a sanction.

Of course, it is difficult to imagine how defendants might have been prejudiced by the loss of the scratch 61.

If conjecture like this, built on a foundation of fortuity, is sufficient for a showing of prejudice, the loss or destruction of Rosario material is not just presumptively prejudicial, as Selbin advocates, it is per se prejudicial. And while Criminal Procedure Law § 240.75 does not directly apply in a case where the claim relates to the proper sanction when Rosario material has been lost to the defendant’s prejudice, its enactment clearly signals the legislature’s antipathy toward per se rules leading to the reversal of convictions for Rosario violations.

Illegal Arrest Attenuated And Evidence Acquired Independently From Illegal Arrest Is Admissible

By Stephen N. Preziosi, March 4th, 2014

People v. Jones 

New York Court of Appeals 

22 NY3d at 56

Decided November 19, 2013

Issue: Whether the connection between defendant’s illegal arrest and his subsequent lineup identification was sufficiently attenuated as to dissipate the taint of the wrongful arrest.

Holding: The lineup identification procedure was sufficiently attenuated so that it was not deemed suppressible as a result of the illegal arrest.

Facts: In the early hours of May 16, 2006, a New York City detective responded to a distress call at an apartment building in Manhattan and spoke with the victim and her neighbor about an incident that occurred that morning. According to the victim, a man, whom she later identified as defendant, followed her onto the elevator and demanded money. A struggle ensued. The man was six feet tall, in his early to mid-thirties with dark skin and a large build.  perpetrator had a large nose and went by the street name “Izz.”

The detective contacted a colleague from the Manhattan Gang Unit, who ran the nickname through a database. The detective learned that “Izz” was also known as “Michael Wright.”

Several days later, a sergeant was reviewing the robbery report when he recognized the name of a worker at the store that the victim had visited before she was attacked. The sergeant gave the employee his cell phone number and asked the employee to call him the next time he saw the man.

On May 31, 2006, at approximately 2:00 a.m., while the sergeant was on duty, the store employee called and told him that the man was at the store. The sergeant located the man—defendant—around a nearby corner, and when asked, the defendant identified himself as “Michael Wright” but was unable to produce identification.

Defendant was transported to the precinct six blocks away. Within 15 minutes of his arrival, the sergeant contacted the detective at his home (at approximately 2:30 a.m.) and learned that the detective had placed a photograph of the suspect in his case folder. When the detective arrived at the precinct, he made arrangements for defendant to be placed in a lineup. The victim identified defendant as the perpetrator. Defendant was arrested for and charged with burglary.

Following his conviction, defendant appealed. The Appellate Division held the judgment in abeyance and remitted the matter for a Dunaway hearing. At the hearing, the detective and sergeant, the only two witnesses called, testified essentially to the facts set forth above. The hearing court credited their testimony and concluded that the sergeant lacked probable cause to stop and arrest defendant on May 31, 2006 for the earlier robbery. The court did, however, find that because the detective had independently gathered sufficient evidence tying defendant to the robbery, the sergeant’s discovery of the “fruits” of the detective’s investigation within 30 minutes of defendant’s detention broke the causal connection between the illegal arrest and the lineup identification. The hearing court concluded that the call between the sergeant and the detective constituted an “intervening event” that attenuated the causal connection between the arrest and the lineup identification.

Legal Analysis: The sergeant’s initial arrest of defendant was without probable cause and therefore illegal. But evidence discovered subsequent to an illegal arrest is not indiscriminately subject to the exclusionary rule (see People v Jones, 2 NY3d 235, 241-242 [2004]). Instead, the People “must have ‘somehow exploited or benefited from [the] illegal conduct’ such that ‘there is a connection between the violation of a constitutional right and the derivative evidence’ obtained by the police”.

The People were required to demonstrate that the identification was “acquired by means sufficiently distinguishable from the arrest to be purged of the illegality” (People v Conyers, 68 NY2d 982, 983 [1986]), i.e., that the taint of the illegal arrest was “attenuated” (see Wong Sun v United States, 371 US 471, 491 [1963]). In order to determine whether attenuation exists, the court must “consider ‘the temporal proximity of the arrest and [the evidence at issue], the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct”.

“Attenuation of evidence from police misconduct” is generally a mixed question of law and fact that is beyond our review unless there is no record support for the Appellate Division’s determination (People v Williams, 17 NY3d. there was record support at the hearing to support the Appellate Division’s attenuation finding.

By the time the sergeant effected the illegal arrest, the detective already had in his possession sufficient evidence to establish probable cause for defendant’s arrest. Within 30 minutes of arriving at the precinct, the sergeant was in contact with the detective, and that conversation led the sergeant to the detective’s case folder and the photograph of defendant. At that point, the sergeant possessed probable cause to detain defendant until the lineup identification eight hours later. Thus, there is clear record support for the Appellate Division’s finding that, at the time of the lineup identification, any taint of the illegal arrest had been attenuated.