Appellate Roundup Continued from page 19 the suppression court had suppressed the videotaped statement, it had ruled admissible defendant’s earlier statement to the detective. The Appellate Division reversed, finding “given defendant’s failure to comprehend that he had the right to an attorney at the time of his statements if he could not afford one it is evident that defendant’s previous statement to the detective should also be suppressed”. People v. Doumbia, 2017 NY Slip Op 06402 decided September 5, 2017 Defendant was denied the effective assistance of counsel where his attorney advised him that there was a mere risk or possibility he would be deported prior to his guilty plea. As defendant plead guilty to an aggravated felony, the plea would result in mandatory deportation. In remanding for further proceedings the Appellate Division recognized that “lawyers have an affirmative duty to adequately inform their clients about the serious effects of criminal convictions to the extent, and with as much specificity as possible”. The dissent viewed the record as insufficient to support a claim of ineffective assistance because the challenged conduct implicated matters not reflected in the record. People v. Bonilla, 2017 NY Slip Op 06405 decided September 5, 2017 The trial court committed reversible error in refusing to charge temporary lawful possession of a gun where the defendant testified at trial that after wresting the gun away from the deceased he shot him a short time later. Given the imposition of a justification defense, the defendant’s shooting the deceased did not negate the entitlement to a temporary lawful possession instruction where the shooting was justified and the
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possession otherwise lawful. People v. Swison, 2017 NY Slip Op 07302, decided October 19, 2017 The evidence was legally insufficient to support defendants’ first-degree burglary conviction. Even viewed in the light most favorable to the prosecution, the evidence did not prove that defendant had the intent to commit a crime when he entered or remained on the premises. The incident was part of an escalating domestic dispute. The intent to commit the assault did not precede defendant’s entering or refusing to leave the premises.
Second Department People v. Vargas, 2017 Slip Op 07465, decided October 25, 2017 The trial court erred in admitting the grand jury testimony of a witness who testified at a Sirois hearing that he had been threatened. The prosecution failed to demonstrate by clear and convincing evidence that the witness became unavailable due to threats made at the initiative or acquiescence of the defendant. Accordingly, the trial court unjustifiably denied the defendant the right to cross-examine the witnesses against him. For similar reasons, the trial court erred in admitting evidence concerning threats made against the witness where there was no evidence linking the defendant to the threats. The errors, which could not be deemed harmless, warranted reversal. People v. Karal, 2017 NY Slip Op 07274 decided September 11, 2017 The Appellate Division vacated a persistent violent felony offender
sentence where the sum of defendant’s incarceration dates did not amount to a sufficient tolling period so as to qualify a 1987 conviction as a predicate violent felony under penal law § 70.04 (1) (b) (iv). People v. Noble, 2017 NY Slip Op 07280 decided October 18, 2017 The suppression court erred in refusing to suppress the defendant’s statements and refusal to take a chemical test made to an officer who found defendant sleeping in his car parked on the side of the road with his engine running. When defendant awakened upon the officer’s banging on the windshield, defendant floored the accelerator causing the engine to race and attempted to shift the car into gear. At that point the officer opened the car door, leaned inside and turned off the ignition. The officer detected the odor of alcohol and observed that defendant’s eyes were glossy. The officer asked defendant to step out of the car and administered sobriety tests before arresting him for driving while intoxicated and aggravated unlicensed operation of a vehicle in the first degree. The hearing court denied suppression finding the officer had a “founded suspicion” that criminal activity was afoot which gave him the right to open the door and turn off ignition for his own safety. The Appellate Division reversed, finding that reaching into the car and turning off the ignition constituted a forcible stop of the car permitted only upon a finding of reasonable suspicion. The prosecutor had not argued that reasonable suspicion supported the officer’s actions. Accordingly the Appellate Division reversed the order denying suppression. Without the suppressed evidence there was insufficient proof to support the charges, warranting dismissal of the indictment.
Atticus | Volume 30 Number 1 | Winter 2018 | New York State Association of Criminal Defense Lawyers