New York Law Review

Tag: 2011

  • Johnson v. Martins, 16 N.Y.3d 544 (2011): Discretion to Order Manual Audit of Ballots

    Johnson v. Martins, 16 N.Y.3d 544 (2011)

    A court has discretion to order a manual audit of election ballots only if there is a material discrepancy likely to affect the election result or flagrant irregularities in the election process.

    Summary

    Following an election for State Senator, a machine count showed Republican candidate Martins leading Democratic candidate Johnson by a narrow margin. A mandatory audit of 3% of the voting machines revealed minor discrepancies. Johnson sought a full manual audit, arguing that the error rate exceeded regulatory thresholds. The Supreme Court denied the request, certifying Martins as the winner. The Appellate Division affirmed, holding the decision was within the Supreme Court’s discretion under Election Law § 16-113. The New York Court of Appeals affirmed, finding no abuse of discretion, as the discrepancy rate was significantly below the margin of victory, and there was no evidence of flagrant irregularities.

    Facts

    After an election for State Senator in New York’s Seventh Senatorial District, the electronic vote count showed Republican candidate Jack Martins leading Democratic candidate Craig Johnson by 415 votes (0.5% of approximately 85,000 votes cast).

    A mandatory 3% audit of voting machines revealed: (1) one machine with more ballots than the ballot box contained; (2) two machines with fewer ballots than the ballot box contained (resulting in a net gain of three votes for Johnson); and (3) one machine with an even count but a miscounted undervote, resulting in one additional vote for Martins.

    The net change from the audit discrepancies was two votes in Johnson’s favor. No evidence suggested these discrepancies resulted from misconduct.

    Procedural History

    Johnson and the Chair of the Nassau County Democratic Committee commenced proceedings seeking a district-wide manual audit under Election Law § 16-113.

    The Supreme Court denied the request for a manual audit and certified Martins as the winner.

    The Appellate Division affirmed, finding no abuse of discretion under Election Law § 16-113.

    The Appellate Division granted leave to appeal to the Court of Appeals and certified the question of whether its decision was properly made.

    Issue(s)

    Whether the lower courts erred in determining that there was not a sufficient basis to order a full manual audit of the election results under Election Law § 16-113.

    Holding

    No, because the statute grants Supreme Court discretionary authority to order a manual audit, and the discrepancy rate was significantly below the margin of victory; there was no substantial likelihood that the result of the election would be altered by a full manual audit, and there was no evidence of flagrant irregularities in the election process.

    Court’s Reasoning

    The Court of Appeals affirmed the lower court’s decision, emphasizing that Election Law § 16-113 grants Supreme Court discretionary authority to order a manual audit.

    The Court stated that a denial of a manual audit is only an abuse of discretion if “the record must demonstrate the existence of a material discrepancy likely to impact upon the result of the election, or flagrant irregularities in the election process.”

    The Court acknowledged that some level of discrepancy is inevitable, but the critical question is the *degree* of discrepancy that requires a manual audit.

    The Court held that the Supreme Court can direct a manual audit if evidence shows a discrepancy indicating “a substantial possibility” that the election result could change (Election Law § 16-113 [2]).

    Because the discrepancy rate was significantly below the margin of victory, there was no substantial likelihood that a full manual audit would alter the election result. Moreover, no evidence indicated the discrepancies stemmed from any flagrant irregularity in the election process.

    The Court concluded that it lacked the power to disturb the lower court’s discretionary determination.

    The Court declined to review arguments about individual contested ballots, considering them academic because they could not impact the election result.

  • People v. Smith, 17 N.Y.3d 668 (2011): Gun Offender Registration is Not Reviewable on Direct Appeal

    People v. Smith, 17 N.Y.3d 668 (2011)

    Gun Offender Registration Act (GORA) requirements, like Sex Offender Registration Act (SORA) requirements, are not a traditional or integral part of a defendant’s sentence and therefore are not reviewable on direct appeal from a judgment of conviction.

    Summary

    Defendant Smith pleaded guilty to weapons charges and was informed he would be subject to New York City’s Gun Offender Registration Act (GORA). He appealed, arguing GORA was preempted by state law. The New York Court of Appeals held that GORA registration, like SORA registration, is not part of the sentence and therefore not reviewable on direct appeal. The Court emphasized that GORA registration is an administrative matter between the City, the NYPD, and the offender, not a component of the sentence imposed by the court. Challenges to GORA’s validity should be brought via Article 78 proceedings or declaratory judgment actions.

    Facts

    Sean Smith was charged with weapons possession, marijuana possession, and unlicensed driving. He pleaded guilty to the weapons charges and unlicensed driving. At the plea hearing, the court informed Smith that he would be required to register as a gun offender under GORA.

    Procedural History

    The Supreme Court sentenced Smith to concurrent prison terms and informed him of his GORA obligations. Smith appealed, arguing GORA was preempted by state law. The Appellate Division affirmed, holding that GORA requirements are not part of the sentence and therefore not reviewable on appeal. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether GORA registration is subject to appellate review pursuant to CPL 450.10 as part of the judgment of conviction and sentence.

    Holding

    No, because GORA registration and notice requirements are not a traditional, technical, or integral part of the defendant’s sentence, nor are they subsumed within the judgment of conviction.

    Court’s Reasoning

    The Court of Appeals relied on its prior holdings in People v. Stevens and People v. Kearns, which established that SORA registration and notification requirements are not a traditional part of a sentence and are therefore not reviewable on direct appeal. The Court extended this reasoning to GORA, noting that neither the Penal Law nor the Criminal Procedure Law authorizes a sentencing court to impose GORA registration as part of a defendant’s sentence. The court stated that “pursuant to the terms of GORA, the registration of a gun offender is an administrative matter between the City of New York, the NYPD, and the offender, not a component of a gun offender’s sentence to be imposed by the sentencing court.” Unlike initial sex offender certifications or orders of protection issued at sentencing, GORA registration requirements do not appear on the defendant’s “Uniform Sentence and Commitment” form, further indicating they are not part of the sentence. The court distinguished People v. Nieves and People v. Hernandez, where the matters sought to be appealed (initial sex offender certification and orders of protection) were deemed part of the judgment of conviction because they were “actually and temporally” part of the judgment. The Court also suggested that challenges to GORA’s validity should be brought via Article 78 proceedings or declaratory judgment actions, as these are appropriate means to challenge preemption by state law. The court emphasized that “Appealability of determinations adverse to a defendant cannot be presumed because ‘a defendant’s right to appeal within the criminal procedure universe is purely statutory’ ” (quoting People v. Nieves, 2 NY3d 310, 314 [2004]).

  • People v. Levy, 16 N.Y.3d 509 (2011): Trademark Counterfeiting and the Scope of “Goods”

    People v. Levy, 16 N.Y.3d 509 (2011)

    New York’s trademark counterfeiting statute applies even when a counterfeit mark is affixed to goods different from those for which the trademark is registered, as long as the mark identifies the product as genuine to the average consumer.

    Summary

    Mordekhay Levy was convicted of trademark counterfeiting for selling automotive parts with counterfeit Ford trademarks. Levy argued that the statute only applied if the counterfeit mark was used on the same type of goods for which the trademark was registered. The New York Court of Appeals disagreed, holding that the statute applies as long as the counterfeit mark identifies the product as a genuine article to the average consumer, regardless of whether the trademark is registered for that specific type of good. The court also rejected Levy’s argument regarding the lack of a “knowledge charge,” finding that the intent to evade a lawful restriction necessarily implies knowledge that the goods were fake.

    Facts

    Police executed search warrants at Mordekhay Levy’s auto parts business, Black & Yellow Major Auto Parts, seizing allegedly counterfeit Ford parts in 2004, 2005, and 2006. Ford also filed a trademark infringement suit against Levy, resulting in a stipulated preliminary injunction prohibiting him from selling automotive parts bearing Ford trademarks or confusingly similar marks. The seized parts, not manufactured by Ford, bore Ford trademarks or product numbers. Levy purchased and sold parts at below dealer cost. Ford’s trademark counsel testified to the validity and use of Ford’s trademarks.

    Procedural History

    Levy was indicted and tried for second-degree trademark counterfeiting. He moved to dismiss, arguing some parts weren’t covered by the trademark registrations. The trial court denied the motion and refused to instruct the jury that an “intent to evade a lawful restriction” required knowledge the parts were counterfeit. The jury convicted Levy. The Appellate Division affirmed. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether New York’s trademark counterfeiting statute requires that a counterfeit mark be used on the same type of goods for which the trademark is registered to constitute trademark counterfeiting.

    2. Whether the trial court erred in failing to provide a “knowledge charge” to the jury, specifically instructing that the defendant must have known the goods were counterfeit to be convicted of intending to evade a lawful restriction on the sale of goods.

    Holding

    1. No, because New York’s trademark counterfeiting statute is not limited to instances where the counterfeit mark is used on the same goods for which the mark is registered; it applies if the mark identifies the product as a genuine article to the average consumer.

    2. No, because it is impossible to intend to evade a lawful restriction on the sale or distribution of goods without knowing that those goods were fake.

    Court’s Reasoning

    The court stated that statutory interpretation begins with the words of the statute. New York’s trademark counterfeiting statute lacks the explicit “identity-of-goods requirement” present in the federal Trademark Counterfeiting Act. The court reasoned that the legislature’s choice not to include this requirement indicated an understanding that consumers rely on the mark itself, not on knowing the precise products for which the mark is registered. The court provided an example: “assume that Ford makes brake pads for all of its cars, but that it expressly does not place the familiar ‘Ford oval’ on those pads, and therefore does not register the ‘Ford oval’ trademark for that purpose. If a counterfeiter places the ‘Ford oval’ on brake pads, the use of that mark nevertheless ‘identifies’ the good as a genuine Ford product.” Regarding the lack of a “knowledge charge”, the court found it would be impossible to “intend to evade a lawful restriction” on the sale or distribution of goods without knowing that those goods were fake. The court cited People v Samuels, 99 NY2d 20, 25-26 (2002), noting that jurors are presumed to have sufficient intelligence to make elementary logical inferences. The court determined that ample evidence existed for a rational juror to find that Levy intended to evade a lawful restriction, considering the multiple searches, Ford representatives’ visits, and the preliminary injunction.

  • People v. Swinton, 17 N.Y.3d 520 (2011): Depraved Indifference Requires Utter Disregard, Not Intent to Harm

    People v. Swinton, 17 N.Y.3d 520 (2011)

    A conviction for depraved indifference murder requires proof of the defendant’s utter disregard for the value of human life, demonstrating a willingness to act not with the intent to harm, but simply not caring whether grievous harm results.

    Summary

    Swinton was convicted of depraved indifference murder for the death of a woman he struck in the head, covered with a plastic bag, and left on a roof. The New York Court of Appeals reversed, holding the evidence legally insufficient to support the conviction. The Court clarified that depraved indifference murder, in one-on-one killings, requires evidence of utter depravity, uncommon brutality, inhuman cruelty, and indifference to the victim’s plight. The Court emphasized that the defendant’s actions, while culpable, did not demonstrate the required mental state for depraved indifference murder, as the evidence suggested intentional actions rather than a reckless disregard for human life.

    Facts

    The victim was found dead on the roof of an apartment building, partially clothed, with a plastic bag knotted around her neck. An autopsy revealed blunt impact to the head and compression of the neck and chest. Swinton, a building resident, was seen on video entering his apartment with the victim. Later, he was seen carrying her body to the roof. Beads matching the victim’s necklace were found in Swinton’s apartment, along with bloodstains. Swinton admitted to smoking crack with the victim and hitting her in self-defense during an altercation. He gave conflicting statements about whether she was alive when he put the bag over her head to stop the bleeding and moved her body.

    Procedural History

    Swinton was indicted for second-degree depraved indifference murder and first-degree manslaughter. At trial, he moved to dismiss the depraved indifference murder charge based on legal insufficiency, citing People v. Suarez. The trial court denied the motion. The jury convicted Swinton of depraved indifference murder. The Appellate Division affirmed. The New York Court of Appeals reversed the Appellate Division’s order.

    Issue(s)

    Whether the evidence presented at trial was legally sufficient to establish that Swinton acted with the mental state required for depraved indifference murder.

    Holding

    No, because the evidence did not demonstrate the required “utter disregard for the value of human life” necessary for a depraved indifference murder conviction; rather, the evidence pointed towards intentional, albeit potentially reckless, conduct.

    Court’s Reasoning

    The Court of Appeals emphasized that depraved indifference murder should rarely be charged in one-on-one killings, as most killings are better addressed by statutes defining intentional murder or manslaughter. The Court cited People v. Suarez, noting that depraved indifference applies where intent to harm or kill is absent, but acts are marked by uncommon brutality coupled with indifference to the victim’s plight. The Court explained that in People v. Feingold, they explicitly stated that “depraved indifference to human life is a culpable mental state.” The Court stated, “Under both Suarez and Feingold, the decisive question is whether defendant acted with the state of mind required by the depraved indifference murder statute—‘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’”. The Court found the evidence legally insufficient to establish depraved indifference murder because the facts did not establish “torture or a brutal, prolonged” course of conduct. The defendant’s actions, the Court concluded, did not rise to the level of “utter depravity, uncommon brutality and inhuman cruelty” and “indifference to the victim’s plight” required for a depraved indifference murder conviction. The court found that Swinton’s actions, while culpable, lacked the necessary mental state of complete indifference to human life, warranting reversal of the depraved indifference murder conviction.

  • Sykes v. RFD Third Avenue 1 Associates, LLC, 17 N.Y.3d 36 (2011): Negligent Misrepresentation Requires Knowledge of Reliance by a Specific Party

    Sykes v. RFD Third Avenue 1 Associates, LLC, 17 N.Y.3d 36 (2011)

    A claim for negligent misrepresentation requires the plaintiff to demonstrate that the defendant knew the specific party or parties would rely on the misrepresentation; general knowledge that a class of people might rely is insufficient.

    Summary

    Plaintiffs, apartment purchasers, sued Cosentini Associates, the engineering firm that designed the building’s HVAC system, for negligent misrepresentation based on statements in the offering plan. The New York Court of Appeals held that the plaintiffs’ claim failed because they did not adequately allege that Cosentini knew that they, as specific individuals, would rely on the offering plan when purchasing their apartment. The court reaffirmed the Credit Alliance test, emphasizing the requirement of knowledge of reliance by a “known party or parties,” not just a general class of potential purchasers. This decision clarifies the scope of liability for negligent misrepresentation in the context of offering plans and similar documents.

    Facts

    Cosentini Associates, an engineering firm, designed the HVAC systems for a condominium in Manhattan. The offering plan for the condominium contained descriptions of the HVAC systems, including their capacity to maintain certain temperatures. The plaintiffs purchased an apartment in the building and claimed that the HVAC system was negligently designed, resulting in temperature control issues within their unit. The plaintiffs based their claim for negligent misrepresentation on statements made in the offering plan.

    Procedural History

    The Supreme Court initially denied Cosentini’s motion to dismiss the claim. The Appellate Division reversed, holding that the plaintiffs failed to adequately allege the necessary relationship between themselves and Cosentini. The plaintiffs appealed to the New York Court of Appeals as of right.

    Issue(s)

    Whether a claim for negligent misrepresentation can be sustained when the plaintiff has not alleged that the defendant knew the specific party or parties who would rely on the misrepresentation.

    Holding

    No, because a claim for negligent misrepresentation requires a showing that the defendant was aware that the specific party or parties were intended to rely on the misrepresentation, a general awareness that potential purchasers might rely on the offering plan is insufficient.

    Court’s Reasoning

    The Court of Appeals relied on the precedent set in Credit Alliance Corp. v Arthur Andersen & Co., which established prerequisites for finding a relationship sufficient to sustain a negligent misrepresentation claim. The court stated that the accountants (or in this case, the engineers) must have been aware that the financial reports were to be used for a particular purpose, in furtherance of which a known party or parties was intended to rely. The court emphasized that the plaintiffs failed to satisfy the second prong of the Credit Alliance test, as they did not sufficiently allege that they were a “known party or parties.” The court noted that while Cosentini knew prospective purchasers would generally rely on the offering plan, there was no indication they knew these specific plaintiffs would be among them, or even that Cosentini knew of their existence when making the statements. The court directly quoted Westpac Banking Corp. v Deschamps: “This is not, however, the equivalent of knowledge of ‘the identity of the specific nonprivy party who would be relying upon the audit reports’”. The court distinguished the case from instances where the defendant had knowledge of the specific entity relying on the information. This case clarifies that a general awareness that a class of people might rely on a statement is insufficient to establish the necessary relationship for a negligent misrepresentation claim; the defendant must know the identity of the specific nonprivy party relying on the statement.

  • Hoffman v. Parade Publications, 16 N.Y.3d 185 (2011): Impact Requirement for Non-Resident Discrimination Claims

    16 N.Y.3d 185 (2011)

    Non-residents alleging discrimination under the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) must demonstrate that the alleged discriminatory conduct had an impact within the respective jurisdiction.

    Summary

    Howard Hoffman, a Georgia resident, sued Parade Publications in New York, alleging age discrimination after his termination. The New York Court of Appeals addressed whether the NYCHRL and NYSHRL apply to non-residents whose alleged discriminatory termination was decided in New York City, but whose employment and the impact of termination were outside New York. The Court held that non-residents must demonstrate that the discriminatory conduct had an impact within New York City or State to invoke the protection of these laws, emphasizing that the purpose of the laws is to protect those within New York’s borders.

    Facts

    Howard Hoffman, a resident of Georgia, worked as a managing director for Parade Publications, overseeing accounts in 10 states from an office in Atlanta. Randy Siegel, president and publisher of Parade, terminated Hoffman’s employment via a phone call from Parade’s New York City headquarters. Hoffman never worked in New York, and his responsibilities were geographically limited to the Southern and Southwestern United States.

    Procedural History

    Hoffman sued Parade Publications in New York, alleging violations of the NYCHRL and NYSHRL. The Supreme Court dismissed the complaint for lack of subject matter jurisdiction. The Appellate Division reversed, holding that a discriminatory decision made in New York City was sufficient for jurisdiction. The Court of Appeals reversed the Appellate Division, reinstating the Supreme Court’s dismissal.

    Issue(s)

    Whether a non-resident plaintiff, alleging discrimination under the NYCHRL and NYSHRL, must plead and prove that the alleged discriminatory conduct had an impact within New York City or State to establish subject matter jurisdiction.

    Holding

    No, because the policies underpinning the NYCHRL and NYSHRL require that their protections extend to those who inhabit or are “persons in” the City and State of New York, and therefore a non-resident plaintiff must demonstrate that the alleged discriminatory conduct had an impact within those respective boundaries.

    Court’s Reasoning

    The Court reasoned that the NYCHRL is designed to protect the rights and privileges of New York City’s inhabitants. The statute focuses on addressing prejudice and discrimination that threaten the health, morals, safety, and welfare of the city and its residents. The Court emphasized the importance of confining the NYCHRL’s protections to those who work in the city. The Court stated that focusing solely on where the termination decision is made leads to impractical results, expanding the NYCHRL to cover plaintiffs with only tangential connections to the city. The Court reasoned the impact requirement is simple to apply, leads to predictable results, and appropriately confines the NYCHRL’s protections. Similarly, the Court held that the NYSHRL is intended to protect inhabitants and persons within the state. The Court also pointed to the “extraterritorial” provision of the NYSHRL, Executive Law § 298-a, which specifically addresses discriminatory acts committed outside New York against New York residents and businesses, further supporting the view that the law primarily protects those within the state. The dissenting opinion argued that the discriminatory act (termination) occurred in New York City, thus New York courts should have jurisdiction. The dissent emphasized that it would be contrary to the purpose of both statutes to leave it to the courts of other jurisdictions to appropriately respond to acts of discrimination that occurred in New York.

  • People v. McLean, 17 N.Y.3d 118 (2011): Appellate Review of Unpreserved Right to Counsel Claims

    People v. McLean, 17 N.Y.3d 118 (2011)

    An unpreserved claim of a right to counsel violation may be reviewed on appeal only when the violation is established conclusively on the face of the record.

    Summary

    McLean pleaded guilty to murder. On appeal, he argued that his statements to police in 2006 should have been suppressed because his right to counsel had indelibly attached in 2003 when he discussed the same crime with the same detectives in the presence of his lawyer. The Court of Appeals affirmed the Appellate Division’s order, holding that while right to counsel claims can be raised even if unpreserved, appellate review is only available if the violation is clear on the record. Because the record was insufficient to establish conclusively that the attorney represented him in the homicide case, the Court declined to review the claim.

    Facts

    Leonder Goodwin was fatally shot on January 27, 2002. In October 2003, McLean, awaiting sentencing on an unrelated robbery charge, met with detectives and his lawyer, Steven Kouray, to discuss the Goodwin murder in exchange for a more favorable sentence. In December 2006, McLean again met with the same detectives without Kouray present and made statements about his role in the homicide. McLean was subsequently indicted on 16 counts, including two counts of second-degree murder for Goodwin’s death.

    Procedural History

    McLean moved to suppress his 2006 statements, arguing they were involuntary. County Court denied the motion after a Huntley hearing. McLean raised a right to counsel claim for the first time in the Appellate Division, which declined to consider it due to an insufficient record. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether an unpreserved claim of a right to counsel violation can be reviewed on appeal when the record does not conclusively establish the violation.

    Holding

    No, because the record must conclusively establish the right to counsel violation for appellate review of an unpreserved claim.

    Court’s Reasoning

    The Court of Appeals acknowledged the exception to the preservation rule for right to counsel claims, citing People v. Arthur, which states that once an attorney enters a proceeding, police cannot question the defendant without counsel present unless there is an affirmative waiver in the attorney’s presence. However, the Court emphasized that this exception applies only when the constitutional violation is “established on the face of the record” (People v. Ramos, 99 NY2d at 37). The Court found the record inadequate because it was not clear whether Kouray represented McLean in the homicide case in 2003, or only in the robbery case. The Court stated: “Where the right to counsel claim is not raised in the trial court, neither the People nor the trial judge have reason to know that it is in the case… Thus where the record does not make clear, irrefutably, that a right to counsel violation has occurred, the claimed violation can be reviewed only on a post-trial motion under CPL 440.10, not on direct appeal.” The Court declined to speculate on what evidence the People might have presented to rebut the claim, noting that the officers were not asked about their understanding of Kouray’s role and that Kouray himself did not testify. The Court concluded that the absence of conclusive proof of a violation precluded appellate review.

  • People v. Frederick, 17 N.Y.3d 912 (2011): Reinstatement of Original Indictment After Superseding Indictment Dismissal

    People v. Frederick, 17 N.Y.3d 912 (2011)

    When a superseding indictment is deemed a nullity, the original indictment can be reinstated, and a sentence for a crime in the reinstated indictment can run consecutively to sentences from a prior, separate criminal act.

    Summary

    Trevor Frederick attacked his former girlfriend and her date. He was initially indicted on multiple charges related to both victims, but the jury deadlocked on felony murder. The prosecution obtained a superseding indictment charging felony murder and manslaughter, but the trial court dismissed it. The court then reinstated the original indictment’s felony murder charge. Frederick was convicted of felony murder and sentenced consecutively to his prior sentences. The New York Court of Appeals affirmed, holding that the reinstatement was proper since the superseding indictment was a nullity and the consecutive sentence was justified due to the separate nature of the crimes.

    Facts

    Trevor Frederick, enraged that his former girlfriend went on a date with the victim, forced his way into her dorm room. He stabbed the girlfriend in the neck, causing paralysis. Frederick then made a statement suggesting he was moving towards the victim who was standing near a window. The victim was later found dead in the courtyard below, having suffered blunt impact trauma and multiple stab wounds, including one to the neck.

    Procedural History

    Frederick was initially indicted on multiple charges related to both the girlfriend and the victim. At the first trial, the depraved indifference murder count was dismissed, and a mistrial was declared after a juror was unable to continue deliberating. A second trial resulted in convictions on all counts except felony murder, on which the jury deadlocked, leading to a mistrial on that count. The People then obtained a superseding indictment charging Frederick with felony murder and first-degree manslaughter. The trial court dismissed the superseding indictment and reinstated the original indictment. Frederick was convicted of felony murder in a bench trial. The Appellate Division affirmed. He appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court had the authority to reinstate the original indictment’s felony murder charge after dismissing a superseding indictment.
    2. Whether the trial court could impose a sentence for felony murder that ran consecutively to sentences previously imposed for crimes against the girlfriend.

    Holding

    1. Yes, because if the superseding indictment is a nullity, any consequences flowing from it are also a nullity. The trial court possessed inherent authority to reinstate the original indictment in the absence of any constitutional or statutory double jeopardy bar.
    2. Yes, because the crimes against the girlfriend and the victim were separate and distinct acts in an extended criminal rampage.

    Court’s Reasoning

    The Court of Appeals reasoned that since Frederick himself argued that the superseding indictment was a nullity, the dismissal of the original indictment, which was a consequence of the superseding indictment, was also a nullity. The court emphasized that the Criminal Procedure Law does not expressly preclude the reinstatement of an indictment in such circumstances. The court cited Matter of Lionel E., 76 NY2d 747, 749 (1990), indicating the trial court’s inherent authority to reinstate the original indictment. The court stated that “logically, if the superseding indictment is a nullity—as defendant himself argued and Supreme Court held to be the case—then any action or consequence that flowed from its filing—here, the dismissal of the original indictment—was necessarily a nullity as well.”

    Regarding the consecutive sentence, the court relied on People v. Ramirez, 89 NY2d 444, 451 (1996), which allows for consecutive sentences for separate and distinct acts. The court found that the attack on the girlfriend and the subsequent killing of the victim were separate acts, justifying the consecutive sentence. Distinguishing People v. Parks, 95 NY2d 811 (2000) and People v. Alford, 14 NY3d 846 (2010), the court emphasized that because this was a bench trial, the judge, as factfinder, knew the facts and could determine whether they supported a consecutive sentence without any uncertainty arising from a lack of specificity in a jury charge.

  • People v. Devone, 17 N.Y.3d 106 (2011): Canine Sniff of Vehicle Exterior Requires Founded Suspicion

    People v. Devone, 17 N.Y.3d 106 (2011)

    A canine sniff of the exterior of a lawfully stopped vehicle constitutes a search under the New York State Constitution, requiring founded suspicion that criminal activity is afoot.

    Summary

    The New York Court of Appeals addressed whether a canine sniff of a vehicle’s exterior is a search under the state constitution and, if so, what level of suspicion is needed. In two consolidated cases, *People v. Devone* and *People v. Abdur-Rashid*, the Court held that a canine sniff is indeed a search, but requires only “founded suspicion” of criminal activity, a standard lower than reasonable suspicion. The Court reasoned that while individuals have a diminished expectation of privacy in their vehicles compared to their homes, that expectation still exists and is protected by the constitution. Because police had founded suspicion in both cases, the evidence obtained was admissible.

    Facts

    People v. Devone: Police stopped a vehicle because the driver, Washington, was using a cell phone. Washington could not produce a license or registration and gave inconsistent information about the vehicle’s owner. A canine sniff of the vehicle’s exterior resulted in an alert for narcotics. A subsequent search revealed crack cocaine.

    People v. Abdur-Rashid: An officer stopped Abdur-Rashid’s vehicle for lacking a front license plate. A second officer stopped the same vehicle 45 minutes later for the same reason and noticed debris on the vehicle. Abdur-Rashid and his passenger gave conflicting stories. Abdur-Rashid appeared nervous, and a canine sniff alerted to the presence of drugs. A search of the trunk revealed cocaine.

    Procedural History

    People v. Devone: The County Court initially suppressed the evidence, finding the canine sniff was an illegal search without reasonable suspicion. The Appellate Division reversed, holding that founded suspicion was sufficient. The Court of Appeals affirmed the Appellate Division.

    People v. Abdur-Rashid: The County Court denied the motion to suppress, finding the search lawful. The Appellate Division affirmed, holding the officer had founded suspicion. The Court of Appeals affirmed the Appellate Division.

    Issue(s)

    1. Whether a canine sniff of the exterior of a lawfully stopped vehicle constitutes a search under Article I, § 12 of the New York State Constitution.

    2. If so, what level of suspicion is required before law enforcement can conduct that search?

    Holding

    1. Yes, because a canine sniff of a vehicle’s exterior constitutes a search under Article I, § 12 of the New York State Constitution, as it intrudes upon a place where a person has a reasonable expectation of privacy, albeit a diminished one as compared to a home.

    2. Founded suspicion that criminal activity is afoot is sufficient, because the expectation of privacy in an automobile is less than in a home, and canine sniffs are less intrusive than a full search.

    Court’s Reasoning

    The Court distinguished its prior holding in *People v. Dunn* (77 N.Y.2d 19 (1990)), which required reasonable suspicion for a canine sniff outside an apartment, reasoning that automobiles have a diminished expectation of privacy compared to residences. The Court acknowledged the reduced, but legitimate, expectation of privacy in an automobile, placing it between a home and luggage handed to a common carrier (as in *People v. Price*, 54 N.Y.2d 557 (1981)).

    The Court adopted a “founded suspicion” standard, a level of suspicion lower than “reasonable suspicion,” balancing the diminished expectation of privacy in a vehicle with the utility of canine sniffs for law enforcement. The Court noted, “Given that diminished expectation of privacy, coupled with the fact that canine sniffs are far less intrusive than the search of a residence and provide ‘significant utility to law enforcement authorities’ application of the founded suspicion standard in these cases is appropriate.”

    In both *Devone* and *Abdur-Rashid*, the Court found the officers had founded suspicion. In *Devone*, the driver’s inability to produce a license or registration, inconsistent stories, and vehicle registration discrepancies provided the necessary suspicion. In *Abdur-Rashid*, the condition of the vehicle, unusual travel plans, and the defendant’s nervous behavior justified the canine sniff. The court concluded that the officers in both cases possessed a founded suspicion to conduct the canine sniff.

  • People v. Diaz, 17 N.Y.3d 43 (2011): Notice Requirement for Extreme Emotional Disturbance Defense

    17 N.Y.3d 43 (2011)

    A defendant must provide notice under CPL 250.10 when raising an extreme emotional disturbance defense, even if relying solely on lay testimony rather than expert psychiatric evidence.

    Summary

    Teofilo Diaz was convicted of second-degree murder for strangling his former girlfriend. Diaz sought to assert an extreme emotional disturbance defense, claiming he “went crazy” after the victim told him their son wasn’t his. The prosecution argued Diaz failed to provide the notice required by CPL 250.10(2). The trial court allowed late notice and an examination by the People’s psychiatrist. The New York Court of Appeals held that the notice requirement of CPL 250.10 applies even when the defendant intends to rely solely on lay testimony to prove the defense, as fairness dictates the prosecution have an opportunity to rebut such claims.

    Facts

    Teofilo Diaz strangled his former girlfriend, Felipa Santana, after she told him that their son wasn’t his. This occurred shortly after Diaz was released from prison for assaulting Santana, and violated an order of protection. Diaz fled to Florida and was apprehended a year later. He was charged with murder, criminal contempt, and endangering the welfare of a child.

    Procedural History

    The trial court allowed Diaz to file a late notice of intent to present an extreme emotional disturbance defense, and granted the prosecution time for a psychiatric examination of Diaz. Diaz was convicted of second-degree murder. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the notice requirement of CPL 250.10 applies when a defendant intends to raise an extreme emotional disturbance defense relying solely on lay testimony.

    Holding

    Yes, because the statute and principles of fairness require notice to the prosecution regardless of whether the evidence is expert or lay testimony.

    Court’s Reasoning

    The Court reasoned that “psychiatric evidence” as defined in CPL 250.10 encompasses any mental health evidence, including lay testimony. The purpose of the notice provision is to prevent unfair surprise and allow the prosecution an opportunity to acquire relevant information to counter the defense. Quoting People v. Berk, 88 N.Y.2d 257, 265 (1996), the Court stated that the notice provision is intended “to allow the People an opportunity to obtain any mental health evidence necessary to refute a defense of mental infirmity, it follows that it applies to any mental health evidence to be offered by the defendant in connection with such a defense.” The Court acknowledged that preclusion of a defense for failure to comply with the notice provision can implicate a defendant’s constitutional rights, and trial courts must balance these rights against the prejudice to the People. However, in this case, the court allowed the late notice and the defense was presented, mitigating any constitutional concerns. The court also determined that compelling the defendant to submit to examination by the People’s psychiatrist was authorized under CPL 250.10(3).