New York Court of Appeals Reverses Appellate Term, Holds Allegations that Defendant Requested “Manual Stimulation” Were Sufficient to Alleged Patronizing a Prostitute in the Third Degree

Defendant was charged with Patronizing a Prostitute in the Third Degree, Penal Law § 130.00(1). The complaint alleged Defendant requested “manual stimulation” from a woman on a street corner, for a specific sum of money, at 2:25 a.m.

The trial court dismissed for facial insufficiency, and the Appellate Term affirmed.

The Court of Appeals reversed and reinstated the prosecution, holding that Defendant’s assertion that defendant was referring to a nonsexual activity “was a matter to be raised as an evidentiary defense.

The case is People v. Marvin Drelich, No. 142

You can read the opinion HERE:

https://www.nycourts.gov/ctapps/Decisions/2018/Oct18/SSM22opn18-Decision.pdf

People v. Marvin Drelich, No. 142

 

Second Department Vacates Sentence as a Second Violent Felony Offender, Remands for Resentencing

Defendant had a prior conviction in California for first degree robbery, California Penal Code §§ 211, 212.5. However, the People failed to prove that the prior conviction was the strict equivalent of a New York violent felony.

Importantly, the Second Department held that the issue of whether Defendant was properly sentence as a Second Violent Felony Offender survived his waiver of right to appeal that he signed in connection with his guilty plea agreement.

The case is People v. Richard Salako, Docket # 2016-06025

You can read the decision HERE:

http://www.courts.state.ny.us/courts/ad2/Handdowns/2018/Decisions/D56781.pdf

People v. Richard Salako, Docket # 2016-06025

Second Department Reverses Conviction for Murder in the Second Degree, Remands for New Trial.

At his trial, a witness testified that he was with the Defendant and watched him pull out a gun and shoot the victim. The witness testified he picked up the gun and ran away with Defendant to the witness’ apartment. The murder weapon was later found in the garbage compactor room of the witness’ apartment building. The gun was testifed for DNA, and contained a mixture of DNA from the Defendant, the witness, and the witness’ girlfriend, as well as two other unknown, unrelated people.

During summation, the Assistant District Attorney argued “defendant’s DNA was on the safety of that gun,” and that “the science finds him guilty.” The prosecutor further stated that “[t]he DNA has spoken,” and that “[t]he defendant’s DNA, by being on that safetywithout even taking into account [the witness’s] testimony, makes him guilty.” She also further argued that she met with the witness on several occasions, and during those meetings, the witness did not know that his DNA was on the gun, but admitted to her that he had picked up the gun and held it.

The Second Department reversed, finding that these arguments constituted prosecutorial misconduct. The arguments improperly encouraged inferences of guilt based on facts not in evidence, improperly injected her own credibility into the trial, and improperly vouched for the credibility of a witness for the People.

The Second Department went even further, finding that on the record, Defendant received ineffective assistance of counsel based on counsel’s failure to object to the summation, and counsel’s failure to request an accomplice corroboration instruction. The Court held that because different inferences could reasonably be
drawn from the witness’s testimony and from the forensic evidence as to the witness’s role as an accomplice, the lack of an accomplice corroboration charge also warrants a new trial.

The case is People v. Steven Powell, Docket # 2014-09322

You can read the decision HERE:

http://www.courts.state.ny.us/courts/ad2/Handdowns/2018/Decisions/D56790.pdf

People v. Steven Powell, Docket # 2014-09322

 

Second Department Reverses Conviction for Gang Assault in the Second Degree, Dismisses Indictment

The complaining witness testified he was assaulted by 20 Hasidic men in Brooklyn. Defendant and others were arrested and charged. At trial, the complainant could not identify anyone who assaulted him. The complainant gave conflicting accounts of the incident, as did other witnesses. During the assault, one of the victim’s sneakers were removed. It was recovered 6 days later, and contained a minute amount of DNA. The DNA was was found to have a mixture of at least two people, of which Defendant was said to be a contributor.

efendant was convicted after a bench trial of Gang Assault in the Second Degree, Unlawful Imprisonment in the First Degree, and Menacing in the Third Degree.

The Second Department reversed and dismissed the Indictment, finding that the verdict was against the weight of the evidence. Importantly, the Second Department gave no creedence to the DNA evidence, which in this case was that it was:

695,000 times more probable that the DNA sample originated from the defendant and an unknown unrelated person than from two unknown unrelated persons. The analysis also found that it was 133 times more likely that the DNA sample originated from the defendant and the complainant than from the complainant and an unknown unrelated person. The FST analysis of the DNA was based upon a Caucasian population, and failed to take into account the genetic history of the defendant, a member of the Hasidic population. Moreover, the likelihood ratio result was only 133, a relatively insubstantial number.

The case is People v. Mayer Herskovic, Docket # 2017-02494

You can read the opinion HERE:

http://www.courts.state.ny.us/courts/ad2/Handdowns/2018/Decisions/D56620.pdf

People v. Mayer Herskovic, Docket # 2017-02494

Fourth Department Reverses Conviction for Assault in the First Degree, Orders New Trial

During jury selection, one prospective juror disclosd that she knew the surgeon who had treated the victim for stab wounds allegedly inflicted by the Defendant two years prior. The same surgeon had performed surgery on the juror, and treated the juror for 14 days, during which the juror saw the surgeon at least once a day. The juror stated that the doctor had saved her life and done a good job, but assured the court that she would not let her personal feelings about the doctor interfere with her ability to be fair and impartial. The Defendant moved to challenge the juror for cause, arguing that a personal relationship with a witness, despite her assurance of impartiality, justified striking the juror. The court denied the challenge, reasoning that that the assurances of fairness cured any implied bias. Defendant properly preserved the issue by exercising his last peremptory challenge to excuse the juror.

The Defendant was then convicted of Assault in the First Degree, and appealed.

The Fourth Department reversed, finding that that the juror indicated a likelihood that her relationship to the surgeon was of a nature that would preclude her from rendering an impartial verdict.

You can read the decision HERE:

http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2018/10-05-18/PDF/0920.pdf

People v. Kenneth Farley, Docket # KA 17-00071

Fourth Department Reverses ANOTHER Conviction for Murder in the Second Degree, and Remands for New Trial

Another remarkeable and unusual case out of the Fourth Department. Defendant was convicted of Murder in the Second Degree in 2001. He initially appealed, and his conviction was affirmed on direct appeal. Later, he filed a petition for a writ of error coram nobis, arguing that he received ineffective assistance of appellate counsel due to counsel’s failure to raise an issue on appeal that may have merit, i.e., whether the court erred when it failed to comply with CPL 310.30 in its handling of jury notes.

The Fourth Department granted the writ of error coram nobis, and agreed to hear the appeal de novo.

After Defendant’s de novo appeal, the Fourth Department reversed and granted a new trial. At trial, the court received two notes from the jury, but only informed the attorneys of one note, nor did the court read the contents of either note into the record.

As a result, the conviction was reversed and a new trial ordered.

The case is People v. Dennis Timmons, Docket # KA 01-01201

You can read the decision HERE:

http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2018/10-05-18/PDF/0920.pdf

People v. Dennis Timmons, Docket # KA 01-01201

Fourth Department Reverses Conviction for Criminal Sale of a Controlled Substance in the Third Degree, Vacates Guilty Plea, Remands for Further Proceedings

Defendant pled guilty to three counts of Criminal Sale of a Controlled Substance in the Third Degree, (Penal Law § 220.39(1)), and Criminal Possession of a Controlled Substance in the Third Degree, (Penal Law § 220.16(1)), and Criminal Possession of a Controlled Substance in the Seventh Degree, (Penal Law § 220.03) as part of an agreement to enter Drug Treatment Court. Subsequently, he did not successfully complete treatment court. However, at the time of his plea, the Defendant was not advised that his plea and sentence would include a period of Post-Release Supervision. As a result, the plea was not entered knowingly and voluntarily, requiring vacatur.

The case is People v. Joseph Teta, Docket # KA 16-01113

You can read the decision HERE:

http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2018/10-05-18/PDF/1051.pdf

 

People v. Joseph Teta, Docket # KA 16-01113

Fourth Department Reverses Conviction for Murder in the Second Degree, and Remands for New Trial

Fourth Department Reverses Conviction for Murder in the Second Degree, and Remands for New Trial

This is a remarkable case. Defendant was convicted of Murder in the Second Degree in 2006. He initially appealed, and his conviction was affirmed on direct appeal. Later, he filed a petition for a writ of error coram nobis, arguing that he received ineffective assistance of appellate counsel due to counsel’s failure to raise an issue on appeal that may have merit, i.e., whether the court erred when it failed to comply with CPL 310.30 in its handling of jury notes.

The Fourth Department granted the writ of error coram nobis, and agreed to hear the appeal de novo.

People v Ott, 153 A.D.3d 1135 (4th Dept 2017).

After Defendant’s de novo appeal, the Fourth Department reversed and granted a new trial. At trial, the court received two notes from the jury, but only informed the attorneys of one note, nor did the court read the contents of either note into the record.

As a result, the conviction was reversed and a new trial ordered.

The case is People v. Anthony N. Ott, Docket # 06-01424

You can read the opinion HERE:

http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2018/10-05-18/PDF/0943.pdf

People v. Anthony N. Ott, Docket # 06-01424

Fourth Department Reverses Denial of Forensic Post-Conviction DNA Testing, Remands for Reconsideration

Defendant challenged his conviction with a post-conviction relief motion pursuant to CPL 440.10. He also moved for post-conviction forensic DNA testing of a rape kit and the victim’s clothing. The trial court denied the 440.10 motion, but failed to address the motion for post-conviction DNA testing. The case was remitted to the trial court for a
determination whether “ ‘there was a reasonable probability that, had th[e rape kit, shirt and pants] been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant’ ”

The case is People v. Robert C. Lewis, Docket # 14-01649

You can read the opinion HERE:

People v. Robert C. Lewis, Docket # KA 14-01649

http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2018/10-05-18/PDF/0921.pdf

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