New York Legal Update

Motion Denying Modification of Order of Protection Issued In Criminal Conviction Not Appealable

A permanent order of protection issued at the conclusion of a criminal action is appealable as of right as part of the judgment of conviction (see People v Nieves, 2 NY3d 310, 315 [2004]; CPL 450.10). Last week in People v Whalen, 2008 NY Slip Op 01874, the Third Department held that an order denying a motion to modify such an order of protection is not appealable.

In that case, the defendant had a sexual relationship with one of his biological daughters, and was convicted of two various counts of rape, sodomy, and incest and imprisoned. As part of that sentence, a permanent order of protection was entered pursuant to CPL 530.12 prohibiting the defendant from contacting the victim and her "other and immediate family." Once incarcerated, the defendant began corresponding with the victim's half sister, who was the defendant's younger biological daughter by a different mother. That daughter, with the assistance of her mother, thereafter began visiting the defendant in prison until correction officials became concerned that he was grooming her to be his next victim. Citing the order of protection, correction officials then denied the defendant further contact with the victim's half sibling. Shortly thereafter, the defendant made a motion seeking to have the order of protection modified to allow such contact. The County Court denied that motion and the defendant appealed the County Court's order.

The Third Department dismissed the appeal. The Court stated that a defendant's right to appeal within the criminal procedure universe was purely statutory and was therefore strictly limited. The Court, recognizing that an order of protection issued at the conclusion of a criminal action is appealable as of right, nevertheless stated that an order denying modification of such an order did not fit within the statutory authorization for appeals as of right within CPL 450.10.

Parachute Jumping Off The Empire State Building - Is It A Crime?

We all love a daredevil. That spirit of the fearless facing of death causes us to root for him and makes us feel like we can do anything. New York City has a long love affair with daredevils. Frederick Laws successfully parachuted from the torch of the Statue of Liberty in 1912. That same decade, Harry "The Human Fly" Gardiner climbed the facade of the Flatiron Building. Perhaps the most famous New York daredevil was tightrope walker Philippe Petit, who in 1974 thrilled the City as he walked on a wire cable between the roofs of 1 and 2 World Trade Center. In 1977 Brooklyn toy maker George Willing used homemade equipment to scale the outside of 1 World Trade Center, a monumental three and a half hour ordeal. There have also been a number of parachute jumps off the World Trade Center buildings.

Are these acts by daredevils crimes in New York? And if so exactly what crime?

On Tuesday the First Department was confronted by these issues in People v Corliss, 2008 NY Slip Op 01869, which involved a prosecution for an attempted parachute jump off the Empire State Building.

The defendant Jebb Corliss was a renowned "BASE jumper", an individual who attempts parachute jumps off of various types of structures: Buildings, Antennas, Spans [bridges], Earth [cliffs]. On April 27, 2006, at approximately 5:00 pm he went up to the observation deck of the Empire State building wearing a prosthetic "fat suit" and mask to disguise his appearance and parachute equipment. When he emerged on the 86th floor observation deck, he removed his "fat suit" to expose his jumpsuit and a backpack containing a parachute, as well as a helmet with a camera mounted on it. He quickly scaled the security fence and arrived at the outer ledge of the building. Building security guards, who had been alerted of a possible jumper by an anonymous source, attempted to apprehend defendant. The defendant initially resisted but, after a struggle during which the security guards were situated on the inside of the security fence and defendant was on the outside, he was handcuffed to a rail and rendered unable to jump. When he informed the security guards that while tethered to the building in that position, his parachute could accidentally open, which could cause him fatal injuries, the guards cut the straps of the pack to remove the parachute. Defendant was ultimately removed from the ledge and arrested.

The defendant was subsequently indicted for reckless endangerment in the first degree (Penal Law § 120.25). A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person. The Court of Appeals has interpreted this to require, "an utter disregard for the value of human life - a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (People v Feingold, 7 NY3d 288 [2006]).

Following his arrest, defendant made several statements indicating that the attempted jump was the culmination of a long term dream, that he had carefully planned the jump over a 10-year period, that he never meant to harm anyone, and that he had studied the traffic patterns of the avenue below and timed his jump so he would land when the traffic lights on the avenue below were red and the avenue was clear. The defendant moved to dismiss the indictment arguing, inter alia, that the evidence before the grand jury was legally insufficient, and that the charge of reckless endangerment was legally inappropriate in that nothing he was alleged to have done could reasonably be perceived as constituting a depraved indifference to human life, or creating a grave risk of death to another person. He further argued that there was no law in New York making it illegal to jump off a bridge or a building, and that the concept of reckless endangerment does not encompass such conduct, particularly since, he suggested, the act of making such a jump constitutes constitutionally protected expression.

The motion court granted dismissal of the indictment. The motion court found that the defendant's conduct was dangerous and ill-conceived, but it did not rise to the level of depraved indifference as defined by People v Feingold, 7 NY3d 288. The motion court noted that the defendant attempted to maximize his chances of landing when traffic was stopped, which, according to the court, suggested that rather than indifference to the risk of harm to others, the defendant took affirmative steps to mitigate the risk and ensure the safety of others. The motion court concluded that "[h]owever outrageous this stunt was, the evidence before the grand jury demonstrates that defendant took steps to avert risk to others."

The First Department agreed with the motion court that the charge of reckless endangerment in the first degree (Penal Law § 120.25) could not be sustained both because the grand jury was improperly charged on the mens rea element of reckless endangerment in the first degree, and because the evidence was insufficient to establish that charge.

However, the First Department found that evidence before the grand jury was sufficient to establish the lesser included offense of reckless endangerment in the second degree (Penal Law § 120.20). And thus, the motion court should have ordered the reduction of the charge to that offense rather than dismissing the indictment entirely. A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. The First Department rejected as specious the defendant's suggestion that nothing in the Penal Law prohibited parachuting off tall buildings and into the middle of a busy city street. The Court stated that such conduct was clearly encompassed within the reckless endangerment statutes, which are aimed generally at "perilous conduct." In addition, the Court found that even though he was stopped from jumping his attempts were enough to put people at risk stating:

Climbing over the security fence, to a position where, according to one security guard, he appeared ready to jump off the building, in itself put many people at risk. Not only were 30-to-40 mile per hour winds gusting out of the north, making mishaps more likely, but even an accidental misstep, or a hand or object reaching through the security fence and accidentally pushing, rather than grabbing him, could have sent defendant into the air, where a faulty parachute would result in a likelihood of death not only for defendant but for people on the ground. Even a properly functioning parachute that landed a jumper safely might cause a variety of accidents. There were also risks that an object carried by or attached to defendant, or an object deployed through the fence by security guards to prevent defendant from jumping, could accidentally fall, and any such object would become a lethal projectile along the way. Additionally, the actions defendant took created a risk of serious physical injury to building security staff whose job it was to try to stop him from making the jump, and even bystanders in the vicinity were endangered by the ensuing struggle.

Thus, the First Department reinstated the indictment by reducing the charge to the lesser included offense of reckless endangerment in the second degree (Penal Law § 120.20).

So, Jebb Corliss may be a criminal of a lesser type, but admit it, don't you just love this kind of criminal?

Indictment Dismissed For Potential Bias Of Grand Juror

The Criminal Procedure Law does not contain a specific provision to challenge a grand juror or an Indictment based on that grand juror's familial relationship to a witness. But as the Third Department's decision last week in People v Revette, 2008 NY Slip Op 01452 demonstrates, this does not mean an Indictment cannot be dismissed because of such a relationship.

The case involved a prosecution for arson. One of the grand jurors was married to one of the three deputy sheriffs who investigated the fire and testified before the grand jury. When the prosecutor was informed of this he asked the grand juror, "So you don't think you could be fair and impartial? Your [sic] not just listening to him." The grand juror simply responded, "I can stay." The prosecutor then indicated they would evaluate the situation later before the grand jury deliberations and vote to see if the grand juror could be impartial.

In finding that the Indictment should have been dismissed under CPL 210.35(5), the Third Department stated that even though this statute contains no provision for dismissal because of a relationship between a grand juror and witness, dismissal is merited in "instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury."

The Court found that in the case before it that the grand juror's response to the prosecutor's question of whether she could be impartial was ambiguous, and the prosecutor never followed through with his suggestion that they would reevaluate the situation before grand jury deliberations began. Thus, the Court dismissed the indictment with leave to the People to resubmit the charges to a new grand jury.

Juvenile Convicted For Using The "N" Word

There are many reasons not to use the "N" word. One of which is Aggravated Harassment In the Second Degree (Penal Law § 240.30). Take the case of Matter of Shane Ee., 2008 NY Slip Op 01479 decided by the Third Department last Thursday.

In that case, the juvenile Shane Ee, over the course of two months, while riding on the same school bus, called the victim several names. Some of those names indicated a bias against her based upon her race, color and gender. At one point, the juvenile told the victim, "I've got a gun with your name on it." Another time, he stared at her and stated, "we shoot niggers like you in the woods."

Based on these incidents the juvenile was charged with Aggravated Harassment In the Second Degree, which provides that a person is guilty of that offense when:

with intent to harass, annoy, threaten or alarm another person, he or she strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct (Penal Law § 240.30 [3]).

In upholding the juvenile's conviction, the Court reject his argument that his threats and racial slurs constituted protected speech under the 1st Amendment. The Court stated:

In addition to threatening physical harm, the language at issue here is so personally and racially offensive that it was likely to provoke the average person to retaliation, and thereby cause a breach of the peace (quotes and citations omitted). Such language is not considered privileged free speech, and may constitutionally be proscribed by the government.

The Court also found that the evidence was legally sufficient and that the verdict was not against the weight of the evidence:

The evidence plainly showed that respondent at least intended to annoy or alarm the victim with his repeated name-calling and threats of physical harm. The racial and gender-based character of those names was circumstantial evidence sufficient to show that his actions were motivated by bias or prejudice. No physical contact occurred, but respondent's statements, "I've got a gun with your name on it" and "we shoot niggers like you in the woods," constituted threats of harmful physical contact. Although the victim testified that she did not fear that respondent would actually shoot her, no particular feelings on the part of the victim are required. The court believed the victim's testimony and did not believe several aspects of respondent's testimony, specifically when he denied making any racial slurs or the threat regarding a gun. Viewing the evidence in a neutral light, while accepting these credibility determinations, the weight of the evidence supports a finding that respondent committed acts which would constitute the specified crime.

The Uncomfortable Jury Foreperson

New York's Criminal Procedure Law § 310.30 contains a certain procedure when a court receives a note from a jury during deliberations. It generally requires that when a court receives a note from the jury, it must return the jury to the courtroom and, after notice to both the people and defendant's counsel, and in the presence of the defendant, the court must deal with the note as it deems proper.

Yesterday in People v Figueroa, 2008 NY Slip Op 01604, the First Department was confronted with whether the trial court violated the procedure in CPL § 310.30 after receiving a somewhat unusual note from the jury foreperson.

After the jury had sent a note indicating that it had reached a verdict, the foreperson sent a personal note to the court indicating that he did not feel "comfortable" about reading the verdict. The court inquired of the foreperson about the meaning of the note, outside the presence of defendant, his codefendant or any of the attorneys. Subsequently, the court informed counsel of the note, and related that during the inquiry, no mention of the verdict itself was made. Instead, the foreperson stated that he was uneasy about having to read the verdict out loud in some sort of narrative form. The court related to counsel that when it assured the foreperson he would only have to answer the clerk's questions, the foreperson, who had not served on a jury before, was "relieved" and satisfied. In response to the prosecutor's question, the court stated that the foreperson never indicated any discomfort with the verdict itself, which was simply not discussed. Neither defendant objected to this procedure or sought a further inquiry of the foreperson. The jury then rendered its verdict, and, when individually polled, each juror including the foreperson agreed with it.

Subsequent to trial, the codefendant moved to set aside the verdict on the ground that the court failed to follow the procedure set forth in CPL § 310.30, specifically in that he was absent when the court responded to the note. The foreperson signed an affidavit, which was obviously drafted by an attorney, in which he claimed that other jurors had coerced his verdict, and that he had communicated to the court that this was why he was uncomfortable announcing the verdict. However, during the course of a CPL § 330.30 hearing, the foreperson conceded that he had never communicated to the court any discomfort with the substance of the verdict, but only with the process of reading it out loud. Thus, he essentially corroborated the court's version of the colloquy. The court, treating the motion as the motion of both parties, ruled that it had acted only ministerially, that defendants had waived any challenge, and that there was no basis to set aside the verdict.

The First Department agreed with trial court's ruling on the motion and refused to set aside the verdict. While the defendant argued that his presence was necessary and that counsel's presence would have elicited from the foreperson a better articulation of why he was "uncomfortable," the First Department found that the only reasonable conclusion was that the trial court's interaction with the foreperson, involving only the mechanism by which the foreman would announce the verdict, was entirely ministerial. The First Department stated the trial court simply clarified what the foreperson meant by being uncomfortable, and it did not discuss anything about the law, the facts of the case or the verdict. Thus, neither the defendant nor his attorney could have made a meaningful contribution, so their presence was not required. The First Department added that since the trial court's action was only ministerial and did not fall within its core responsibilities in responding to a jury note, the defendant was required to request a further inquiry of the foreperson or otherwise preserve a claim of error, which he failed to do.

Are DNA And Fingerprint Reports "Testimonial" Statements?

Under the Sixth Amendment and the N.Y. Constitution, a criminal defendant has the right to be confronted with the witnesses against him. Prior U.S. Supreme Court decisions have interpreted this right as applying to those who "bear testimony." And "testimony" in turn, as expressed by the Supreme Court, "is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact" (Crawford v Washington, 541 US 36 [2004]).

On Tuesday, in People v Rawlins, 2008 NY Slip Op 01420, the Court of Appeals held, under the circumstances before them, that latent fingerprint comparison reports were testimonial statements, while DNA profile reports were not. In both cases, however, the Court of Appeals found that the introduction of the reports were harmless beyond a reasonable doubt.

In a long decision, the Court stated that the question of testimoniality requires consideration of multiple factors, but two play an especially important role in this determination. First whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing.

The Court found that the fingerprint reports at issue were clearly testimonial because the police officer prepared his reports solely for prosecutorial purposes and, most importantly, because they were accusatory and offered to establish defendant's identity.

With respect to DNA reports, the Court stated

A salient characteristic of objective, highly scientific testing like DNA analysis is that the results are not inherently biased toward inculpating the defendant; they can also exculpate. The inescapable corollary is that police or prosecutorial involvement is unlikely to have any impact on the test's results.

A concurrence by Justice Read questioned that majority's reasoning because, "fingerprint comparisons (although arguably not as "highly scientific" as DNA analysis) may also exculpate."

Jurors Do Not Need To Be Able To Read And Write

The qualifications to be a juror are minimal. A juror must:

1. Be a citizen of the United States, and a resident of the county,
2. Be not less than eighteen years of age,
3. Not have been convicted of a felony, and
4. Be able to understand and communicate in the English language.

                                                                                         (Judiciary Law § 510 [4])

The ability to "understand and communicate in the English language" does not include the ability to read and write. So held the Fourth Department last Friday in People v Arguinzoni, 2008 NY Slip Op 01204. In that case, the defendant made a challenge for cause to a prospective juror on the ground that the juror could not read and write. The Fourth Department held that the trial court properly denied the challenge for cause as Judiciary Law § 510 [4] only mentioned "communicate." In addition, the Fourth Department added that even if the trial court had erred in denying defendant's challenge for cause, the error would not require reversal because defendant had not exhausted his peremptory challenges and he did not peremptorily challenge that prospective juror.

I wonder if the result would have been the same if the prospective juror could read and write English, but could not speak it.

Davis Bacon Act Does Not Preempt Filing False Instrument Charge

The Davis-Bacon Act (40 USC § 3141 et seq.) is a Federal law which established the requirement for paying prevailing wages on public works projects. All federal government construction contracts, and most contracts for federally assisted construction must include provisions for paying workers on-site no less than the locally prevailing wages and benefits paid on similar projects.

On Tuesday, the Second Department held that the Davis-Bacon Act does not preempt a State prosecution of offering a false instrument for filing in People v Caridi, 2008 NY Slip Op 00708. The defendant was the president of a corporation involved in a construction project funded by the United States Department of Housing and Urban Development (HUD). As a condition for the receipt of funds, the defendant filed payroll certificates with HUD, in which he falsely represented that workers on the project were paid at the prevailing wage rate. He was charged with offering a false instrument for filing in the second degree (Penal Law § 175.30). The defendant pleaded guilty, but on appeal argued that his prosecution was preempted by the Davis-Bacon Act and federal regulations providing administrative remedies for noncompliance with the Davis-Bacon Act.

The Second Department disagreed stating that the State prosecution did not constitute a regulation of wages determined by the federal government, but was instead a valid exercise of the State's police power which had only a peripheral relationship to the wages required under the Davis-Bacon Act. In addition, the Court found that there was no indication that Congress intended to preempt the State's police power. Finally, the Court found there was no conflict between the State and Federal law. Thus, the Court affirmed the defendant's conviction.

Cell Phones, Schools, and Searches - How Far Can They Go?

The issue of cell phones in schools seems to keep coming up. New York City's ban on cell phones in schools has been upheld, but the issue remains contentious between parents and school administrators.                 Now the issue may be turning from the ban itself to just how far can school administrators go to search students for prohibited cell phones. And what if in searching students for cell phones, other more illegal contraband is found? An interesting case from the First Department yesterday sheds some light on the matter - Matter of Elvin G., 2008 NY Slip Op 00555.

Elvin G. was a 15 year old student in middle school. The teacher of his class reported to the dean of the school that a noise, which sounded like a ringing cell phone, was disrupting her class. The dean entered the classroom to investigate and enforce the school rule that prohibited cell phone use in class. According to Elvin, the dean had the students stand up, and started checking their pockets for something that was making the musical sounds. As a result, Elvin G. took a hunting knife with a six-inch blade out of his pocket. The cell phone apparently was not found.

Elvin G. was then charged as a juvenile with criminal possession of a weapon in the fourth degree, and unlawful possession of a weapon by a person under sixteen. He moved to suppress the knife on the grounds that it was unlawfully obtained in violation of state law and the Federal and State Constitutions [The presenting agency claimed that in fact no search occurred because Elvin was holding the knife in plain view]. The Family Court summarily denied Elvin's motion to suppress without conducting a hearing.

The First Department affirmed accepting Elvin's version of the events as true. The Court set forth the law as follows: When there are reasonable grounds for suspecting that a search will turn up evidence that the student has violated or is violating the law or the rules of the school, a search is permissible when the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction. And it stated:

[A]lthough the dean may not have had reasonable suspicion that [Elvin G.] was the offending student, such individualized suspicion in the context of an administrative search such as this was not required. The dean clearly had a reasonable basis to believe that some student in the classroom was violating school rules and there is no question that such breach was disrupting the class.

[I]t cannot be said, as a matter of law, that asking students to empty their pockets in order to restore order to the classroom and enable the classroom teacher to resume the lesson was unreasonable or overly intrusive.

The next case to come along will probably be where school administrators not merely ask students to empty their pockets, but have some school personnel actually reach into students' pockets or bags.

Criminal Defendants Not Entitled To DNA Testing After Guilty Plea

CPL 440.30(1-a) allows a convicted criminal defendant to make a post-judgment motion to perform DNA testing on evidence introduced at trial. Both the First and Second Departments have previously held that CPL 440.30(1-a) does not permit defendants who have pleaded guilty to seek such DNA testing of forensic evidence (People v Lebron, 44 AD3d 310 [2007]; People v Byrdsong, 33 AD3d 175 [2006], lv denied 7 NY3d 900 [2006]).

Yesterday the First Department extended this holding slightly in People v Allen, 2008 NY Slip Op 00565. In that case, the defendant was originally convicted after a trial in 1983. However, his conviction was subsequently reversed on appeal. The defendant then entered a guilty plea, and after this guilty plea, the defendant sought DNA testing of certain evidence. The First Department rejected the defendant's contention that since he originally had a trial he was entitled to DNA testing under CPL 440.30(1-a). The Court stated that the ultimate judgment resulted solely from a guilty plea, and thus, CPL 440.30(1-a) did not apply.