Page 4 - Court of Appeal and Appellate Practice

S4 | MONDAY, AUGUST 25, 2014 | Court of Appeals and Appellate Practice
| NYLJ.COM

COURT OF APPEALS: CRIMINAL PRACTICE

By Paul Shechtman

Cases Address a Second

Amendment Challenge

And a Non-Citizen Felony Plea,

Among Other Issues

I

n criminal cases, the 2013-2014 term Hughes’ argument was that elevating a gun civil action had been brought against one
of the New York Court of Appeals con- possession charge from a misdemeanor to a of [the] police witnesses, a homicide detec-
tinued the pattern of recent years. The
class C felony based on a prior misdemeanor tive who interrogated [the] defendant, alleg-
court was remarkably busy (it decided 98 conviction impermissibly burdened his Sec- ing that the detective engaged in [similar]
criminal cases) and frequently divided (10 ond Amendment rights. The court rejected police misconduct [coercing a confession] in
cases were decided 4-to-3 and 26 cases 5-to-2). the claim. It “assum[ed] without deciding that an unrelated case.”3 The defendant learned
And there were several noteworthy decisions.
the [severity of the] punishment imposed . is about the civil action only after his murder

In People v. Hughes, the court, for the subject to Second Amendment scrutiny” and conviction, and then brought a CPL §440.10
irst time, considered a Second Amendment ruled that “intermediate scrutiny [was] the motion.
challenge to a gun conviction.1 Under Penal right kind.” Applying intermediate scrutiny, The majority found no Brady violation. Its
Law §265.03(3), a person who possesses an it found that “keeping guns away from people analysis went like this: (i) the “civil allega-
unlicensed loaded irearm is guilty of a class who have shown they cannot be trusted to tions” against the detective were favorable to
C felony unless the possession takes place obey the law is a means substantially related” the defendant as impeachment evidence; but
in his home or business, in which case the to the important government objective of pre- (ii) the People had not suppressed favorable
crime is a class A misdemeanor. The home or venting illegal irearms use. Thus, “to punish evidence because there was no claim that

business exception, however, is inapplicable severely a convicted criminal who, though anyone on the “prosecution team” other than
if the person has been previously convicted of eligible for a license, again violates the law the detective knew of the civil allegations and
any crime. Hughes possessed an unlicensed by obtaining an unlicensed gun” does not his “knowledge of his own alleged misconduct
loaded handgun in his home and had a prior offend the Constitution.2
. could not be imputed to the People for
misdemeanor conviction for resisting arrest. In People v. Garrett, the court considered Brady purposes”; and (iii) in any event, the
He was convicted of the class C felony and whether the People had committed a Brady allegations were not material—there was no
sentenced to 32 years’ imprisonment.
violation in failing to disclose that “a federal
reasonable probability that their disclosure
would have changed the outcome of the case.
On the last point, the majority emphasized

that the defendant had failed to show “what,
if any, admissible evidence disclosure of the
allegations . would have led to.” Importantly,
the court also held that to satisfy their Brady
obligation, prosecutors are not required to
ask police witness about potential misconduct
or to “search the dockets . for complaints
against their police witnesses.”
Chief Judge Jonathan Lippman, joined by

Judge Jenny Rivera, concurred on the issue
of materiality but parted with the majority on
its inding that there had been no “suppres-
sion.” Had the evidence been material, the
Chief Judge wrote, the detective’s knowledge
of the allegations would have been “suficient
to trigger the disclosure obligation.”

PAUL SHECHTMAN is a partner at Zuckerman

Spaeder.