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Court of Appeals and Appellate Practice | MONDAY, AUGUST 25, 2014 | S23

Criminal
ing room, the juror inquired again about self- (in Chief Judge Lippman’s felicitous phrase that, under CPL §310.20, a verdict sheet may

defense, and the court repeated that “[t]his to insist on “readiness on the ground” and contain the location of the charged offenses if
is a fact question . [t]here is no more help not just “readiness in the air”), Sibblies is a it helps the jury to distinguish among counts35;
« Continued from page S5
I can give you.”
welcomed decision. It may reduce some of the that a guilty plea must be set aside on direct
gunman that did not match the defendant. The juror then returned to deliberations, game-playing that has come to characterize appeal if the record “do[es] not afirmatively
The majority opinion, the dissenters wrote, and the court summarized for counsel the New York’s speedy trial (CPL § 30.30) rule. demonstrate defendant’s understanding [and]
provided “absolutely no incentive [for the robing room conversation. On realizing that But the 3-and-3 division in the court is unfor- waiver of his constitutional rights,” regard-
police] to retain these types of forms.”
the defendant was not present, the court had tunate. Should lower courts follow Judge Graf- less of whether the issue was raised below36;
Martinez is strong proof that the days of him returned to the courtroom, summarized feo’s fact-intensive approach (which seems and that in a “common law” DWI case, VTL
per se remedial rules are largely gone.
again what had been said, and explained that to put the burden on the defense to show
§1192(3), a defendant is entitled to a jury
Among the most high proile cases of the a transcript was available for review. No one illusoriness) or Chief Judge Lippman’s near instruction that if the jury “ind[s] that there
term was People v. Thomas, in which the protested. The jury acquitted the defendant per se rule (which puts the burden on the was less than .08 of one percent by weight of
defendant, principally on the basis of his of homicide but convicted him of the gun People to show exceptional circumstances)?23 alcohol in defendant’s blood while she was
confession, was convicted of murdering his charge. On appeal, the Second Department One wishes that the court had answered that operating the motor vehicle, [it] may, but
four-month-old son.18 In an opinion by Chief reversed the conviction, holding that the question and not left it up in the air.
[is] not required to, ind that she was not in
Judge Lippman, the court found the confes- robing room colloquy constituted a “mode There were also these decisions: that an intoxicated condition.”37
sion involuntary and reversed the conviction. of proceedings error.”
having granted a suppression motion after Finally, the box score. As noted, the court
The police had threatened Thomas that if Writing for the majority, Judge Graffeo a hearing at which the People had a full
decided 98 criminal cases. It afirmed in 62
he continued to deny responsibility for his agreed that reversal was required. The defen- and fair opportunity to present evidence, a and reversed in 35. (In one, the outcome was
child’s injuries, his wife “would be arrested dant’s “fundamental constitutional right to court may not reopen the hearing to allow split, making it hard to declare a “winner.”)
and removed from his ailing child’s bedside.” be present at all material stages of a trial” the People to present additional evidence24; The prosecution prevailed in 62 and the
They also falsely reported “some 21 times” had been violated, so that “even absent an that a Sparber “resentencing” (i.e., a resen- defense in 35. Chief Judge Lippman continued
that disclosure of the circumstances leading to objection or where defense counsel has con- tencing to correct a court’s failure to impose his role as the great dissenter; he dissented
the child’s injuries was essential to assist the sented to the procedures used,” a new trial a term of postrelease supervision) does not in 22 cases, in all but one of which he voted
doctors who were treating the child. And they was necessary.
reset the date of sentencing for purposes of for the defendant. The court’s two newest
falsely assured Thomas that if he disclosed all, Judge Abdus-Salaam dissented, joined by determining predicate felony status, so that
he would not be arrested. In short, the record Judges Read and Smith. “[B]y afirming the a defendant who commits a new felony after appointees—Judge Rivera and Judge Abdus-
Salaam—were on opposite sides in 23 cases,
was “replete with false assurances” that were Appellate Division’s order,” Judge Abdus- his original sentencing date but before his in all but two of which Judge Rivera voted for
“undeniably instrumental in the extraction Salaam wrote, “the majority potentially fos- Sparber resentencing is a predicate felon if the defense and Judge Abdus-Salaam for the
of [Thomas’] most damaging admissions.”
ters needless gamesmanship and detaches convicted of the new crime25; that the crimi- prosecution.38 Judge Graffeo was in dissent in
Involuntary confession cases are rare in our precedent on the right to be present from nal impersonation statute, Penal Law §190.25, only two cases; for a lawyer to get her vote
recent years, but Thomas was surely one.
its primary underpinnings.”
reaches conduct aimed at causing reputa- was almost always to get the court.
In People v. Finch, the majority—Judge There was a third preservation decision as tional harm to another (not just financial
Smith writing for Chief Judge Lippman and well. In People v. Walston, the court applied harm)26; and that Penal Law §240.30(1)(a), • ••
Judges Pigott and Rivera—held that if a its established rule that a contemporaneous which prohibits communications made with ••••••••••••••••••••••••••
“defendant has unsuccessfully argued before objection is not required to raise on appeal a intent to annoy, is unconstitutionally vague 1. People v. Hughes, 22 N.Y.3d 44 (2013).
2. A “householder” is entitled to a license to possess a pistol or revolver in his dwelling even if he has a misde-
trial that the facts alleged by the People do claim that the trial court judge failed in her and overbroad.27
meanor conviction.
not constitute the crime charged, and the obligation to disclose the full contents of a And these: that where a defendant pos- 3. People v. Garrett, 2014 WL 2921398.
court has rejected the argument, defendant jury note to counsel.21 Walston is noteworthy sesses a loaded irearm in his home and the 4.Peoplev.Heidgen,22N.Y.3d259(2013).Forathoughtful
need not speciically repeat the argument for the concurring opinion. Writing for himself home exception does not apply because the discussion of Heidgen, see McGuire, “Deciding Depraved
in a trial motion to dismiss to preserve the and Judge Abdus-Salaam, Judge Smith urged defendant has a prior conviction, the indict- Indifference: Judge or Jury’s Domain,” N.Y.L.J. 12/9/13.
5. For a discussion of the court’s “new” depraved in-
suficiency issue for appeal.”19 (Finch had the court in a future case to reconsider its ment need not allege the defendant’s prior difference jurisprudence, see People v. Feingold, 7 N.Y.3d
raised the issue at arraignment when he established rule. (There was no request for conviction because it is not an element of the 288 (2006).
challenged the suficiency of the complaint.) reconsideration in Walston.) “Dispensing with crime (one wonders if that is correct, since 6. See Penal Law §125.14 (there are other factors that
elevate the crime to a B felony, including causing the
Judges Abdus-Salaam, Graffeo and Read dis- the preservation requirement,” Judge Smith the trial jury presumably must ind the exis- death of more than one person).
7. See letter of District Attorney’s Association 6/15/2007.
sented, with Judge Read calling the majority’s wrote, “invite[s] defense counsel to manipu- tence of a prior conviction beyond a reason- 8. People v. Maldonado, 2014 WL 2931529.
approach “downright bizarre.”
late the system by remaining silent while error able doubt)28; that as a general matter, a trial 9. People v. Peque, 22 N.Y.3d 163 (2013).
If Finch is bizarre, it may be because it did is committed, only to complain of it later.”
judge should not participate in readbacks of 10. People v. Ford, 86 N.Y.2d 897 (1995).
not go far enough. Requiring a contempora- And there was People v. Sibblies, in which testimony but should assign the task to “non- 11. People v. Catu, 4 N.Y.3d 242 (2005).
neous objection to preserve an evidentiary the court addressed the speedy trial conse- judicial court personnel”29; and that Penal 12. People v. Baret, 2014 WL 2921420.
13. Padilla v. Kentucky, 559 U.S. 356 (2010).
or jury instruction issue makes good sense: quences of the People’s iling an off-calendar Law §70.85, which permits a defendant to be 14. Teague v. Lane, 489 U.S. 288 (1989); Danforth v. Min-
It affords the trial judge an opportunity to statement of readiness (on Feb. 22, 2007) only resentenced without a postrelease supervi- nesota, 552 U.S. 264 (2007); Chaidez v. United States, 133
consider the issue and prevents a defendant to announce “not ready” at the next court sion term following a Catu error, is a consti- S. Ct. 1103 (2013); People v. Pepper, 53 N.Y.2d 213 (1981).
15. People v. O’Toole, 22 N.Y.3d 335 (2013); People v.
Acevedo
from sandbagging the court. But requiring appearance (on March 28, 2007).22 In Sibblies, tutional remedy.30
, 69 N.Y.2d 478 (1987).
16. See Dowling v. United States, 493 U.S. 342 (1990).
preservation for a legal suficiency claim is the People were not ready on the court date And these: that a person who photographs 17. People v. Martinez, 22 N.Y.3d 531 (2014).
dubious. The possibility of sandbagging is because they were “continuing to investigate his neighbor naked in her second loor bath- 18. People v. Thomas, 22 N.Y.3d 629 (2014); see also
remote, and the imposition of a preservation and [were] awaiting [the assault victim’s] room violates the unlawful surveillance stat- McKinley, Police Coercion Cited in Order for Retrial, N.Y.
requirement can result in the imprisonment medical records.” The question then was ute, Penal Law §250.45, if the neighbor had Times, 2/20/14.
19. People v. Finch, 2014 WL 1883961.
of an innocent person.
this: Was the certiicate of readiness illusory?
a reasonable expectation that she could dis- 20. People v. Rivera, 2014 WL 2573347. The core re-
Finch was not the term’s only signiicant In the Court of Appeals, all six judges who robe there with privacy31; that bodily contact sponsibilities were irst delineated in People v. O’Rama,
preservation case. In People v. Rivera, the heard the case answered that question in the “involving the application of some level of 78 N.Y.2d 270 (1991).
defendant was tried for murder and gun pos- afirmative. (Judge Abdus-Salaam did not par- pressure to a victim’s sexual or intimate parts 21. People v. Walston, 2014 WL 2608462.
22. People v. Sibblies, 22 N.Y.3d 1174 (2014).
23. The question is discussed in Kamins, “Ready
session and claimed self-defense.20 On the ticipate, having been on the First Department qualiies as a forcible touch[ing]” under Penal or Not: Court of Appeals Revisits Speedy Trial Rule,”
second day of deliberations, the jury sent out panel in the case.) Judges Graffeo, Read and Law §130.5232; that it is not disorderly conduct N.Y.L.J. 5/16/14.
a note seeking guidance on “when exactly by Pigott favored a fact-speciic approach: If the for a small group of people, “even people of 24. People v. Kevin W., 22 N.Y.3d 287 (2013).
law” a person is in “imminent danger.” After People needed medical records to be ready bad reputation,” to stand peaceably on a cor- 25. People v. Boyer, 22 N.Y.3d 15 (2013).
consulting with counsel, the court responded on March 28, then they could not have been ner33; and that in a SORA case, a sex offender 26. People v. Golb, 2014 WL 1883943.
27. Id.
that the question was one of fact, not law, ready on February 22, and the certiicate was must prove the facts supporting a downward 28. People v. Jones, 22 N.Y.3d 53 (2013).
and therefore was for the jury to determine.
therefore invalid. Judges Lippman, Smith and departure by a preponderance of the evidence 29. People v. Alcide, 21 N.Y.3d 687 (2013).
A juror then sent out a note that he wanted Rivera favored a more sweeping rule: Absent (not by clear and convincing evidence).
30. People v. Pignataro, 22 N.Y.3d 381 (2013).
31. People v. Schreier, 22 N.Y.3d 494 (2014).
to talk with the court. With the consent of some exceptional circumstance, an out-of- And these: that if an attorney retained to 32. People v. Guaman, 22 N.Y.3d 678 (2014).
33. People v. Johnson, 22 N.Y.3d 1162 (2014).
both counsel, the court spoke to the juror court certiicate should always be invalidated represent a DWI suspect contacts the police 34. People v. Washington, 2014 WL 1767700.
on the record in the robing room outside if the People answer “not ready” when the prior to the suspect’s taking a breathalyzer 35. People v. Lewis, 2014 WL 1697024.
counsel’s presence. The defendant, it seems, case is next called.
test, the police must notify the suspect of the 36. People v. Tyrell, 22 N.Y.3d 359 (2013).
“was [not] present for or aware of his lawyer’s For encouraging courts to scrutinize off-cal- attorney’s intervention, and the failure to do 37. People v. Fratangelo, 2014 WL 2515658.
acquiescence to this procedure.” In the rob-
endar certiicates of readiness more carefully
so requires suppression of the test results34;
38. See NYSBA, New York Criminal Law Newsletter,
Judge Jenny Rivera for the Defense, Summer 2014.