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Court of Appeals and Appellate Practice | MONDAY, AUGUST 25, 2014 | S5

Garrett is a puzzling case. If the mere iling plicable.”7 Heidgen and its companion cases Judge Rivera dissented. For them, the failure from introducing testimony from the victim

of a civil lawsuit against a police oficer is not suggest that the Legislature may have spoken to advise a defendant of the possibility of that the accomplice had used a gun. The trial
admissible evidence (and its disclosure will too soon.
deportation was akin to the failure to advise court denied the motion; the Appellate Divi-
not lead to admissible evidence), then how There was one case in which the “new” him of postrelease supervision, so that vaca- sion reversed, citing Acevedo; and the Court
is it “favorable to the defense”? And if, say, a depraved indifference jurisprudence pre- tur of a plea was required without the need of Appeals granted leave.
key police witness lied on his application for vailed. In People v. Maldonado, the defen- to show prejudice.11 The dissenters criticized Writing for the majority, Judge Smith found
the job, which only he knows, would we really dant stole a minivan and took the police the majority for rendering a decision that was that the irst jury “could not logically have
conclude that knowledge of his lie should not on a wild ive-minute chase—he ran a red “no more than a verbal gesture.”
[acquitted O’Toole of irst degree robbery]
be imputed to the People? And how broadly light, went the wrong way down two one-way The court left open the issue of whether without inding that the People had failed to
does one deine “prosecution team”? Does it streets, swerved into the left lane to pass an admonition is required in misdemeanor prove beyond a reasonable doubt that the

matter if someone in the police department’s slower vehicles, ran another red light, nar- cases, but judges taking misdemeanor pleas robbery involved the display of a irearm.”
legal bureau knows of the civil lawsuit, or if rowly avoided a pedestrian in a crosswalk, from non-citizens would be wise to give Peque Under Acevedo, that meant that collateral
the department itself was also sued?
and ran a third red light—before striking and warnings.
estoppel should apply, and the victim should
One other aspect of Garrett deserves men- killing a woman, throwing her 100 feet in the The court was also divided in People v. be barred from testifying about the gun.
tion. In a footnote, the majority reported that air.8 By a vote of 5-to-2, with Judges Eugene F. Baret, which posed the question whether In reaching that result, the majority
“before the Appellate Division, the People Pigott Jr. and Victoria A. Graffeo dissenting, Padilla should be applied retroactively in rejected the People’s argument that Acevedo
asserted, for the first time, that further the court reduced the defendant’s depraved state court post-conviction proceedings.12 should be overruled. The majority suggested,
investigation had revealed that the detec- indifference murder conviction, to manslaugh- (In Padilla, the U.S. Supreme Court held however, “that collateral estoppel should be
defense
tive named in the federal lawsuit [a Detective ter in the second degree. The defendant’s that the Sixth Amendment requires applied sparingly in criminal cases,” and it
O’Leary] was not the same Detective O’Leary “conscious avoidance of risk,” Judge Rivera counsel to advise a non-citizen client about added two limitations to New York’s rule: (i) “if
who [had] questioned defendant.” Because wrote for the majority, was “the antithesis of the risk of deportation arising from a guilty it becomes apparent . that the Acevedo rule
that information was “dehors the record,” a complete disregard for the safety of others.” plea.13) For readers who enjoy retroactivity cannot practicably be followed if a necessary
the majority declined to consider it. Why? If Although the defendant was “willing to take law—cases like Teague, Danforth, Chaidez and witness is to give truthful testimony,” then it
the interrogating detective was not the sued a grossly unreasonable risk to human life,” Pepper—Baret makes for good reading.14 For should not be applied; and (ii) if the defense
detective, then Garrett is an advisory opinion.
he “care[d] how the risk turn[ed] out.” The others, the bottom line is this: In an opin- opens the door to the introduction of the oth-
This term’s depraved indifference cases— dissenters saw it differently, concluding that ion by Judge Read, the majority concluded erwise prohibited testimony, then the People
Heidgen, Taylor and McPherson, which were a jury could reasonably have found that the (i) that Padilla had announced a “new rule” should be permitted to “walk[] through it.”

consolidated—involved defendants who defendant had evinced an “utter indifference and therefore did not apply retroactively in Judge Pigott dissented, and Judge Rivera
drove “in an outrageously reckless manner to the value of human life.”
state post-conviction proceedings (the U.S. filed a concurring opinion in which Chief
while intoxicated by alcohol or drugs and Rarely has the court been more sharply Supreme Court had reached the same con- Judge Lippman joined. The concurring
caused the death of at least one other per- divided than in People v. Peque, which
clusion in Chaidez, but Danforth held that a
judges rejected the suggestion that collat
son.”4 Writing for the majority, Chief Judge eral estoppel should be
Lippman opined that “intoxicated driving applied sparingly in crimi-
cases that present circumstances evincing nal cases, calling Acevedo
a depraved indifference to human life are he court decided 98 criminal cases. It airmed in 62 and reversed as “important and vital
likely to be few and far between,” but upheld today as the day it was
in 35. (In one, the outcome was split, making it hard to declare
all three depraved indifference convictions.
decided.”
Heidgen is typical of the three cases. There, a “winner.”) he prosecution prevailed in 62 and the defense in 35.
Even as modified in
the defendant, who was “unhappy and self- O’Toole, New York’s col-
destructive,” drank heavily at a party (his lateral estoppel rule as
blood-alcohol level was .28 percent) and then applied to evidentiary facts
drove the wrong way at 70 to 75 miles an hour seems questionable. Unlike
on a highway for more than two miles without addressed the duties of a judge in taking a state court is not required to follow federal elements of a crime, facts need not be proven
reacting to oncoming drivers or wrong way felony plea from a non-citizen defendant.9 A retroactivity law), and (ii) that Padilla was not beyond a reasonable doubt. It is therefore odd

signs. He appeared “to follow, or track, the majority of the court—Judge Abdus-Salaam, a “watershed rule” of criminal procedure—i.e., to preclude testimony about a fact (e.g., pos-
headlights of oncoming vehicles.” His “high joined by Chief Judge Lippman and Judges one so “central to an accurate determination session of a gun) on the ground that the jury
speed game of chicken” played with “com- Read, Graffeo and Rivera—overruled Peo- of guilt or innocence” that full retroactivity has acquitted the defendant of a crime. The
plete disregard for the lives of others” result- ple v. Ford, decided in 1995, and held that, was required.
U.S. Supreme Court has put it this way: “acquit-
ed in a head-on crash and two deaths. On as a matter of due process, a judge must Chief Judge Lippman and Judge Rivera dis- tal in a criminal case [should] not preclude
these facts, the majority afirmed Heidgen’s advise a non-citizen defendant that he may sented in separate opinions that took differ- the [prosecution] from relitigating an issue
conviction for depraved indifference murder.
be deported as a consequence of a felony ent routes. Chief Judge Lippman found that . in a subsequent action [when the issue
Judge Robert S. Smith, joined by Judge plea.10 For three judges—Judges Abdus- Padilla was a “watershed decision,” one that is] governed by a lower standard of proof.”16
Susan Phillips Read, dissented. For them, Salaam, Graffeo and Read—such an advise- “implicates basic questions of humanity and In People v. Martinez, the court considered

there was insuficient evidence that Heidgen ment is necessary because deportation, justice,” and therefore should be applied on whether a trial judge had abused his discre-
knew that he was driving on the wrong side “while technically collateral,” is a “substan- collateral review. Judge Rivera, like Justice tion when he declined to give an adverse
of the road: “Anyone who knowingly drives tial and unique consequence of a plea.” For Sonia Sotomayor who dissented in Chaidez, inference charge regarding the loss of a
the wrong way on a divided highway must two judges—Chief Judge Lippman and Judge argued that Padilla had not announced new handwritten complaint report (a “scratch
either have chosen a bizarre way of commit- Rivera—the advisement is required because rule and therefore should be applied retro- 61”) prepared by a police oficer who had
ting suicide or be prey to some grandiose deportation is a “consequence so certain, actively. Judge Rivera added this: “A criminal responded to a 911 robbery call.17 The scratch
illusion that all other cars will get out of his potentially pivotal and prevalent as to make justice system that affects [so many] must 61, it seems, had been “placed in a bin for
way,” and there was “no more than hints that [a judicial warning] . essential to assuring be able to assure its constituents that every typing,” typed by a civilian employee, and
. Heidgen . was in such an extraordinary that the guilty plea is . voluntary”; it is not proceeding is fair, and that all defendants are somehow lost, but the typed report was avail-

state of mind.” Dissenting separately, Judge a collateral consequence. Judges Pigott and treated justly, regardless of immigrant status.”
able and provided to the defense. Writing for
Read chided the majority for not following the Smith dissented. As they saw it, deportation In People v. O’Toole, the court reconsid- the majority, Judge Read articulated this rule:
court’s recent depraved indifference cases.5
is a collateral consequence, and therefore a ered its holding in People v. Acevedo that the “nonwillful, negligent loss or destruction of
Notably, in 2007, the Legislature created defendant has no constitutional right to be “doctrine of collateral estoppel can be applied Rosario material does not mandate a sanction
the new crime of aggravated vehicular homi- informed about it by the court.
to issues of ‘evidentiary fact.’”15 O’Toole unless the defendant establishes prejudice.”
cide for when an individual kills someone The division among the judges did not end was tried for robbing a barber shop with an Because the defendant in Martinez could offer
while driving with a blood alcohol content there. A separate “remedial majority”—Judges accomplice who, according to the victim, had only “conjecture . built on a foundation of
higher than .18.6 The crime is a class B felony. Abdus-Salaam, Graffeo, Read and Smith—con- a gun. He was acquitted of irst degree rob- fortuity,” he was not entitled to an adverse

(Depraved indifference murder, of course, is cluded that to obtain vacatur of a plea, a non- bery (displaying a irearm) but convicted of inference charge.
a class A felony.) The statute was enacted in citizen defendant must show that “there is a second degree robbery (aided by another Chief Judge Lippman, joined by Judge
response to prosecutors’ pleas that “recent reasonable probability that he . would not actually present). The Appellate Division then Rivera, dissented. For them, the major-
court decisions had so limited the applica- have pleaded guilty . had the trial court reversed the second degree conviction on ity opinion “reflect[ed] a deficit of imagi-
tion of the depraved indifference statutes informed [him] of potential deportation.” On a jury selection issue. At his retrial on that nation,” since the scratch 61 might have
to vehicular crimes as to make them inap-
the remedial issue, Chief Judge Lippman and
charge, O’Toole moved to preclude the People
contained a description of the » Page S23