Appellate Courts Can Look at Trial Evidence in Reviewing Denial of Motions for Severance

Generally, appellate courts cannot consider trial testimony in reviewing a decision denying a pretrial motion (People v Gonzalez, 55 NY2d 720 [1981]). An important exception to this rule is that appellate courts can look at the trial evidence in determining whether a motion for severance should have been granted (People v Lopez, 68 NY2d 683 [1986])

A recent example of how trial evidence can be considered by an appellate court reviewing the denial of a pre-trial motion for severance, is the decision of the Appellate Division, Fourth Department in People v Nixon (2010 NY Slip Op 06997 [4th Dept 10/01/2010]), in which the Court wrote

In support of his pretrial motion for severance, defendant contended that he and the codefendant had irreconcilable defenses because, according to defendant, the codefendant was in sole possession of the weapon, while the defense of the codefendant was that defendant possessed the weapon but placed it under the codefendant's passenger seat when the police stopped the vehicle. Defendant further contended that he would be prejudiced in the event that the codefendant's attorney was permitted to present evidence against him, thereby acting as a second prosecutor. Indeed, defendant was correct in that respect because the codefendant's "attorney took an aggressive adversarial stance against [defendant at trial], in effect becoming a second prosecutor" (People v Cardwell, 78 NY2d 996, 998). In support of his motion for a mistrial following the testimony of the codefendant at trial, defendant contended that the codefendant had testified that defendant stated that he could not be caught with a handgun because he was on parole, and we note in any event that both defendants in fact implicated each other at trial (cf. People v Watkins, 10 AD3d 665, 665-666, lv denied 3 NY3d 761). Consequently, we agree with defendant that " [t]he essence or core of the [*2]defenses [were] in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other' " (People v Mahboubian, 74 NY2d 174, 184). In view thereof, along with the fact that "there [was] a significant danger, as both defenses [were] portrayed to the trial court [in the pretrial motion and the motion for a mistrial], that the conflict alone would lead the jury to infer defendant's guilt," severance was required (id.; see People v Kyser, 26 AD3d 839, 840). Although it appears from the record that the court did not address defendant's irreconcilable conflict contention in refusing to sever the trial or to grant a mistrial, that failure is of no moment because we deem the court to have implicitly denied the severance and mistrial motions on that ground (see generally People v Mason, 305 AD2d 979, lv denied 100 NY2d 563). Consequently, we reverse the judgment and grant a new trial. Inasmuch as the codefendant was acquitted at trial, defendant's severance motion is moot.

DNA Databank Fees

The Appellate Division, Fourth Department has repeatedly recognized that the statutes (see Executive Law § 995 [7]; Penal Law § 60.35 [1] [a] [v])creating the DNA databank fee did not provide for the imposing of such fees for offenses committed prior to the effective dates of those statutes. Furthermore, the Court has exercised its interest of justice jurisdiction to modify judgments to eliminate improperly imposed DNA fees even where counsel failed to timely object. (People v McCullen, 63 AD3d 1708 [4th Dept 2009]; People v Cooper, 2010 NY Slip Op 06973 [4th Dept 10/01/10]).

Thus, even where trial counsel did not object to the imposition of DNA fees, appellate counsel needs to check to insure that the DNA fees were properly imposed.

Concurrent Sentencing and Actus Reus

Penal Law limits the circumstances in which a court may impose consecutive sentences. Specifically, Penal Law § 70.25 [2] provides that concurrent sentences must be imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” Thus, in part, sentences imposed for two or more offenses may not run consecutively where a single act constitutes one of the offenses and a material element of the other.

In People v Laureno (87 NY2d 640 [1996]) the Court of Appeals explained that

In determining whether concurrent sentences are required, ... the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required (citations omitted). If the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the “acts or omissions” committed by defendant were separate and distinct acts (citations omitted).

Thus, counsel should be alert to arguments that different counts actually involved a single actus reus. Such a claim was successful in People v Mitchell (2010 NY Slip Op 06926 [4th Dept 10/01/10]) in which the Court held that

The evidence at trial established only that defendant constructively possessed the firearms with respect to the criminal possession of a weapon counts of which he was convicted, and thus the People proved only a single actus reus (see People v Laureano, 87 NY2d 640, 643; People v Hunt, 52 AD3d 1312, lv denied 11 NY3d 737; People v Rogers, 111 AD2d 665, lv denied 66 NY2d 614, 617). Further, the actus reus of the counts of criminal possession of a weapon is a material element of the offense of unlawful wearing of a body vest (see generally Laureano, 87 NY2d at 643). Thus, that sentence must also run concurrently with the sentences imposed on the criminal possession of a weapon counts.

Catu Reversals Keep on Coming

In People v Catu (4 NY3d 242 [2005]) the Court of Appeals held that s“a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” and decided that the trial court's failure to advise Mr. Catu of his obligation to serve a five-year term of postrelease supervision required reversal of his conviction. Further, the Court rejected a harmless error analysis in which courts seek to retrospectively determine whether the defendant would have declined to plead guilty had he known of the postrelease supervision.

Since this decision about 100 convictions have been reversed on Catu grounds. The two latest such reversal are the decisions of the Appellate, Division, Fourth Department in People v Rush, 2010 NY Slip Op 06911 [4th Dept 10/01/10]) and People v Pett, 2010 NY Slip Op 06826 [4th Dept 10/01/10]).

Thus, appellate attorneys may want to consider this issue when looking for issues to raise. Of course, it would be blog malpractice to suggest the possibility of urging reversal on Catu grounds without including a warning: attacking a plea as not knowing and intelligent may ultimately be harmful to your client, who might subequently receive a greater sentence (see).

General Objections Are Generally Worthless

In 1883, in Bergmann v Jones (94 NY 51) the Court of Appeal held that

The rule is well established that where there is a general objection to evidence and it is overruled and the evidence is received the ruling will not be held erroneous, unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent.

And the Court had repeatedly reminded counsel that a general objection is generally no better as preserving an issue for appellate review than silence (see e.g., People v Vidal, 26 NY2d 249, 254 [1970] ["A general objection, in the usual course, is to no avail when overruled if not followed by a specific objection directing the court, and the adversary, to the particular infirmity of the evidence"]; People v West, 56 NY2d 662, 663 [1982] ["Although a general protest was raised against this testimony, defendant at no time objected to this testimony on the specific ground that it constituted improper bolstering. Thus, defendant has failed to preserve this issue for appellate review"]; People v Fleming, 70 NY2d 947, 948 [1988] ["The word “objection” alone was insufficient to preserve the issue for our review"]; People v Tevaha, 84 NY2d 879,881 [1988]["Defense counsel simply made a general objection when the testimony was proffered, and failed to advise the trial court that the present claimed error was the basis for his objection. The word “objection” alone was insufficient to preserve the issue for our review"]; People v. Everson, 100 NY2d 609,610 [2003] ["A party's failure to specify the basis for its general objection renders its argument unpreserved for this Court's review"]).

So one might think that attorneys would understand that in objecting they must specify the basis for their objections. Otherwise, the only person possibly fooled into thinking that the attorney meaningfully objected to the admission of inadmissible evidence is the client. Yet attorneys continue to make general objections and appellate courts continue to find the objection inadequate to preserve the issue for review.

Two recent decisions of the Appellate Division, Fourth Department should serve as further reminders of the uselessness of general objections. In People v Shire (2010 NY Slip Op 06909 [4th Dept 10/01/10]) Defendant failed to preserve for our review his contention that the admission of testimony of a police detective that defendant possessed the cocaine with the intent to sell it invaded the province of the jury because "defendant made only a general objection to the testimony."

Similarly, in People v McMillon (2010 NY Slip Op 06925 [4th Dept 10/01/10]), the Court held that a general objection did not preserve for review a claim that it was violation of the right of confrontation to permit a police officer to testify that he told the defendant that other witnesses had placed defendant at the scene of the homicide.

So please, before standing up to object, plan to say something other than "objection, your honor."

Sandoval Rulings Subject to Change Based on Defense Proof

A Sandoval hearing is designed to let the accused make an informed choice whether he should take the stand prior to testifying by providing a pre-trial determination of the permissible scope of cross-examination of the accused (People v Sandoval, 34 NY2d 371). Generally, a trial court's authority to change its Sandoval ruling is limited once defendant has decided to testify in good-faith reliance on the court's pretrial ruling (see, People v Powe, 146 AD2d 718, 719, l).

However, there is an important exception to this general rule which defense counsel needs to be aware of in questioning witnesses. As the Court held in People v Lyon, AD3d, 2010 NY Slip Op 06892 [10/01/10], where "a defendant's testimony conflicts with evidence precluded by a Sandoval ruling, "the defense opens the door' on the issue in question, and the [defendant] is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" (People v Fardan, 82 NY2d 638, 646; see People v Rodriguez, 85 NY2d 586, 591)." Indeed, in Fardan the Court held that the exception applies not only to the defendant's testimony but also when "a witness for the defense testifies to facts that are in conflict with the precluded evidence."

CPAC public sessions on Colombia and Greece cultural property agreements coming soon

The Cultural Property Advisory Committee will be holding public sessions on October 12 and October 14, 2010 to consider renewing the cultural property protection agreement with Colombia and to consider a new agreement with Greece.

More information can be found by reading the Federal Register at http://exchanges.state.gov/media/office-of-policy-and-evaluation/chc/pdfs/2010frncpacmtg10.pdf.