Brooklyn trial court, attorney erred in criminal case, Appellate Division dismisses indictment

A panel of Appellate Division, 2nd Department judges ordered the indictment of a defendant dismissed after finding that  the lower court made a series of serious errors and that the defendant's counsel was ineffective.

Angel Morales was convicted in Brooklyn Supreme Court, Criminal Term, in 2000, for burglary, criminal trespass, escaping from a hospital where he was being treated after his arrest and criminal mischief. He was sentenced to 16 years to life. Morales appealed his conviction, and in 2003, the Appellate Division, 2nd Department, upheld the conviction. In 2011, Morales sought a petition for a writ of error coram nobis, arguing that the lower court ruling was erroneous because of errors made at the trial level.

Morales, through his court-assigned appellate attorney, Lynn Fahey, contended that the trial court judge erred in his statements throughout the trial and that the judge's lack of -- or in some instances, confusing -- instruction to the jury harmed and prejudiced Morales' right to a fair trial. Fahey's brief to the court argured that the lower court judge approached the Morales' trial with a “cavalier” attitude, treating the case as a “mere formality to be disposed of with a minimum of fuss and bother.”

During the jury selection process, the trial judge told a prospective juror that taking care of her child was “more important” than serving as a juror, an act Fahey contended was one display of the trial judge's insolent treatment of Morales' case.

Further, Fahey asserted the judge failed to provide the jury with the admonitions that are required by New York's Criminal Procedure Law. NY. CPL 270.40 mandates that after a jury is sworn in and before opening statements, the jury members must be told that, among other things, they may not speak to anyone about the trial, visit the location(s) where the crime took place, read or listen to any media about the case, or take money in exchange for information about the trial.

“[T]he trial court erred in failing to give the jury the requisite preliminary instructions found in CPL 270.40,” the four-judge Appellate Division panel wrote in the order that dismissed Morales' indictment.

The failure to properly instruct the jury notwithstanding, the trial judge also “repeatedly failed to charge all of the statutory elements of the offenses for which the defendant was convicted,” the panel noted. For some charges against Morales, the trial court “failed to enumerate the elements at all or even provide the name of the crime at issue,” Fahey asserted in her brief. For other charges, the lower court gave “a garbled, inaccurate or contradictory list of elements.”

The Brooklyn District Attorney's Office, represented by Assistant District Attorneys Leonard Joblove and Thomas Ross, countered that because Morales' trial attorney did not object or properly preserve any issues or concerns regarding the trial judge's actions on the record, Morales cannot claim that he was harmed or prejudiced by the result of the trial.

Fahey argued that Morales was the victim of ineffective counsel. Morales' prior counsel “fail[ed] to protest the court's numerous ... errors,” Fahey argued in her brief. This strategy, she asserted, had no possible justification”

The Appellate Division agreed. Concluding that Morales was deprived of the effective assistance of appellate counsel, the panel dismissed the entire indictment against Morales. Morales, who has served 13 years of his prison sentence, is scheduled to be released on Friday.