People v. SumlerPeople v. Sumler
Defendant contends that County Court abused its discretion in denying his motion to sever the counts arising from the first incident from the counts arising from the second incident because the underlying incidents were separate and unrelated, and the inclusion of counts from the first incident served as prejudicial propensity evidence tending to establish the second incident. We reject that contention. The counts were properly joined pursuant to
We reject defendant‘s contention that the court violated his right to a fair and impartial jury when it denied his request to remove a sworn juror based on comments that she made during defense counsel‘s cross-examination of the victim. As relevant here, a court must discharge a sworn juror upon a finding that the juror is “grossly unqualified to serve in the case” (
Defendant contends that the evidence is legally insufficient to support the conviction of rape in the first degree, burglary in the first degree, aggravated criminal contempt, criminal contempt in the first degree, assault in the third degree, burglary in the second degree, and stalking in the fourth degree. Viewing the еvidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support the conviction (see People v Bleakley, 69 NY2d 490, 495 [1987]).
With respect to the first incident, defendant contends that he was guilty of, at most, criminal trespass in the second degree because, although he entered the victim‘s home in violation of an order of protection, he did not intend to commit any other crime therein. We conclude that the evidence presented to the jury is legally sufficient to support the conviction of burglary in the second degree inasmuch as it established “that when defendant entered the apartment, he intended to commit a crime in the apartment other than his trespass” (People v Lewis, 5 NY3d 546, 552 [2005]). A rational jury could have inferred beyond a reasonable doubt from the circumstances of defendant‘s entry, including the inference that defеndant shut off the power to the apartment, that defendant intended to frighten and intimidate his family, in express violation of the order of protection prohibiting defendant from, inter alia, menacing, intimidating, or threatening his children. “Those acts are distinct from the trespass element of burglary and, when [as here are] prohibited by an order of protection . . . , can serve as predicate crimes for the ‘intent to commit a crime therein’ element of burglary” (id. at 552-553).
With respect to the second incident, defendant contends that the victim did not sustain a “physical injury” to support the counts of burglary in the first degree, aggravated criminal contempt, and assault in the third degree. The victim testified that defendant grabbed her left hand and bent her middle and ring fingers back so far that she thought her hand was broken, she rated her pain as a 7½ out of 10, and she received medical attention for her hand. As defined in the Penal Law, “[p]hysical injury” means “impairment of physical condition or substantial pain” (
Viewing the evidence in light of the elements of the crimes of rape in the first degree, burglary in the first degree, aggravated criminal contempt, criminal contempt in the first degree, assault in the third degree, burglary in the second degree, and stalking in the fourth degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant‘s further contention that the verdict with respect to those counts is against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Where, as here, “witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opрortunity to view the witnesses and observe their demeanor” (People v Streeter, 118 AD3d 1287, 1288 [4th Dept 2014], lv denied 23 NY3d 1068 [2014], reconsideration denied 24 NY3d 1047 [2014] [internal quotation marks omitted]; see People v McKay, 197 AD3d 992, 993 [4th Dept 2021], lv denied 37 NY3d 1060 [2021]). Here, the jury was “entitled to credit the testimony of the People‘s witnesses, including that of the victim, over the testimony of . . . defendant[ ],” and we perceive no reason to disturb the jury‘s credibility determinations in that regard (People v Tetro, 175 AD3d 1784, 1788 [4th Dept 2019]).
We further reject defendant‘s contention that he was deprived of a fair trial by the cumulative effect of various alleged errors raised on apрeal (see People v Anderson, 220 AD3d 1223, 1227 [4th Dept 2023]; People v Evans, 217 AD3d 1461, 1461 [4th Dept 2023], lv denied 40 NY3d 996 [2023]). The sentence is not unduly harsh or severe.
Defendant further contends that the court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds (
The People bear the burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the COC (see id. at 213). “If the prosecution fails to make such a showing, the COC should be deemed improper, the reаdiness statement stricken as illusory, and—so long as the time chargeable to the People exceeds the applicable CPL 30.30 period—the case dismissed” (id.).
Here, in denying the motion to dismiss, the court determined that the People complied with the discovery mandates of
All concur except Montour and Nowak, JJ., who dissent and vote to hold the case, reserve decision and remit the matter in accordance with the following memorandum: We agree with the majority‘s conclusion that it was error for County Court to deny defendant‘s motion to dismiss the indictment pursuant to
Effective January 1, 2020, sweeping legislative changes transformed discovery and speedy trial practices in criminal courts throughout New York. Subdivision (1) of
The legislative reforms tie the People‘s fulfillment of the above discovery obligations to their readiness for trial under
This appeal presents two distinct violations of
With respect to the first issue, we agree with defendant that he was entitled to the disciplinary records of the potential law enforcement witnesses, and that the summariеs provided by the People were improper (see e.g. Matter of Jayson C., 200 AD3d 447, 449 [1st Dept 2021]). “As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (People v Roberts, 31 NY3d 406, 418 [2018] [internal quotation marks omitted]). Here, the statute requires that the prosecution turn over to the defense “[a]ll evidence and information . . . that tends to . . . impeach the credibility оf a testifying prosecution witness” (
With respect to the second issue, we would conclude that it was also improper for the People to refuse to disclose the disciplinary records of potential law enforcement witnesses that they unilaterally deemed irrelevant. Whether something is potential impeachment material is not for the People to decide, but rather for defense counsel. Indeed, the Court of Appeals has long recognized “that the potential impeachment value of a witness‘[s] prior statement could best be determined by the ‘single-minded counsel for the accused’ ” (People v Banch, 80 NY2d 610, 615 [1992]). There is no reason the impeachment value of an officer‘s disciplinary record should be treated any differently. If the People believe that certain disciplinary records should not be disclosed because they do not involve an officer‘s credibility or truthfulness, the best practice would be to seek a protective order from the court pursuant to
Instead of follоwing that permissible practice, the People here unilaterally chose not to disclose disciplinary records of potential witnesses. We would conclude, on the basis of the People‘s failure to comply with their discovery obligations, that the People did not file a valid certificate of compliance, and therefore any announcement of readiness pursuant to
The majority, however, relying on People v Bay (41 NY3d 200 [2023]), concludes that the matter must be remitted for a determination whether the People made ” ‘reasonable efforts’ to comply with [the] statutory directives,” and ” ‘ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery’ ” (Bay, 41 NY3d at 211). We reject the majority‘s position. Notably, Bay had no occasion to address the circumstance presented here—i.e., “where the People know discovery exists but nonetheless certify compliance without disclosing it,” or “where the People know that some material exists but nonetheless unilaterally choose to withhold it, deeming it ‘irrelevant,’ ‘immaterial,’ or ‘not discoverable’ ” (People v Marte, 82 Misc 3d 528, 532, 533 [Crim Ct, Queens County 2023]).
The plain language of CPL article 245 with respect to due diligence is instructive.
The requirement of due diligence and reasonable efforts is linked to the People‘s obligation to determine whether mandatory discovery material and information exists; it is not linked to the People‘s attempts to comply with the statutory requirements once such material or information has been found. That due diligence refers to the People‘s efforts to identify the existence of discoverable material is, we submit, clear from Bay, in which the Court of Appeals identifies “relevant factors for assessing due diligence,” including “how obvious any missing material would likely have been to a prosecutor exercising due diligence, . . . and the People‘s response when apprised of any missing discovery” (Bay, 41 NY3d at 212). In addition, as noted
In light of our conclusion, we would hold the case, reserve decision, and remit the matter to County Court to determine, in the first instance, whether the People had exceeded the time under
Entered: June 14, 2024
Ann Dillon Flynn
Clerk of the Court