Legal Bits & Bytes
Define That Term #267

Useful Web Resource for NY Criminal Defense Practitioners

Checkmark I recently discovered a summary of recent New York criminal law decisions handed down during the second half of 2007, authored by Albany attorney Michael P. McDermott from the law firm O’Connell and Aronowitz that might be of interest to those of you who handle criminal matters.  The summary can be found here.

The following is an excerpt from the January 2008 summary:

Multitasking?

Trying to juggle a hectic practice?

In the middle of a murder trial but still need to attend that real estate closing? Relax, the jury can wait.

In People v. Ortiz 1, defendant was convicted of murder and attempted murder. He received a cumulative sentence of 30 years to life. On appeal, defendant argued that he was deprived of conflict-free and effective representation because jury deliberations were suspended for an afternoon so that his attorney could attend a closing. The First Department rejected defendant’s claim, characterizing the adjournment as a “routine scheduling conflict” and affirmed the conviction.

For those of you foolhardy enough to try this in Albany County… please do not mention that you read this in the newsletter.

“But Judge… I want to keep the sleeping juror!”

The trial court dismissed as “grossly unqualified” a juror who repeatedly appeared to be sleeping during the course of the trial. 2 When questioned after the first observed snooze, the juror admitted that she was tired, but claimed to be paying attention to the proceedings. It was only when the juror’s head snapped back several times during the charge that the court dismissed the juror over the defendant’s objection, without making further inquiry.

The First Department found no error, finding that additional questioning was unnecessary under the circumstances.

Cliffhanger Resolved

For those of you actually in suspense over the resolution of People v. Greene (first discussed in the November newsletter), read on. You may recall that the issue in Greene was whether evidence obtained in violation of the physician-patient privilege, which lead to the identification of a murder suspect, warranted suppression of the identification. The Appellate Division thought not.

In affirming, the Court of Appeals held that there is no constitutional right to privacy in physician-patient communications. The Court reasoned that it is a physician’s duty to safeguard the privilege and to suppress the evidence would be to punish the State for the misconduct of the physician or hospital. 3

No Courtroom for a Crime

In People v. Zimmerman, 4 the Court of Appeals handed down a decision with a most curious result.

Zimmerman, was the result of the Attorney General’s probe into alleged violations of the Donnelly Act (New York’s antitrust law) by Federated Department Stores. In the course of its investigation, the AG’s office deposed Mr. Zimmerman (CEO of Federated) in Ohio.

Believing that Mr. Zimmerman lied during the course of his deposition, the AG convened a grand jury in New York County to consider perjury charges. The grand jury returned an indictment charging Zimmerman with Perjury in the First Degree.

While the alleged perjury obviously occurred in Ohio, the defendant conceded New York had jurisdiction pursuant to CPL 20.20 (2) (b). That statute confers jurisdiction when the underlying criminal offense is designed to prevent the occurrence of a particular effect in this state and the conduct was committed with the intent that it would have such an effect.

However, the defendant took issue with New York County as the venue for the action. The AG’s office argued that “particular effect” venue pursuant to CPL 20.40 (2) (c) rendered New York County the proper venue since any prosecution generated by the underlying investigation would have been commenced in that county. While the statutes defining the “jurisdiction” of the State (CPL 20.20) and the “jurisdiction” of counties (CPL 20.40) are similar, there are important (and probably unintended) differences. For a county to have jurisdiction (i.e. proper venue), under the “particular effect” theory, the county itself (not the state of New York as a whole) must suffer a particular effect of the defendant’s alleged misconduct.

Because there was no proof that New York County, as opposed to the State as a whole, suffered from Zimmerman’s alleged perjury, the indictment was dismissed. In the words of Judge Ciparick, writing for the majority: “it is lamentable that, although defendant’s acts admittedly could have caused a “concrete and identifiable” injury to New York State generally, there is not a single county in the State where this prosecution could be brought given the current statutory scheme.”

I told you it was curious.

1. 2007 NY Slip Op 08836, decided November 15, 2007.
2. People v. Snowden, 2007 NY Slip Op 07883 (First Department, reported 10/18/2007).
3.  People v. Tamal Greene, 2007 NY Slip Op 09066 (decided 11/20/07).
4.  People v. Zimmerman, 2007 NY Slip Op 09812 (decided 12/13/07)

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