New York Criminal Law and Procedure

AT2 holds that probable cause is determined from objective analysis of facts

In People v. Crane (App. Term, 2d Dept., 1/27/2010), the Second Appellate Term reversed an order of the Justice Court of the Town of New Windsor, which had granted the defendant's motion to suppress.  The defendant had been stopped by a trooper for various traffic infractions.  During the course of the stop, the trooper noted that the defendant's speech was slurred and that the defendant smelled of alcohol.  The trooper also observed that the defendant's eyes moved rapidly and that the defendant was unable to complete two field sobriety tests successfully.  Subsequently, the trooper arrested the defendant for DWI and related traffic infractions.

The Justice Court held a Mapp/Dunaway hearing and determined that, while the trooper had an "adequate predicate" to stop the defendant's vehicle, the People had failed to establish probable cause to arrest the defendant.  In so holding, the Justice Court relied principally on the trooper's opinion that the defendant might have been under the influence of alcohol. In other words, the court said, the trooper had "reservations" about probable cause.

However, the Appellate Term held that Justice Court's reliance on the subjective opinion of the trooper was wrongly placed.  Rather, Justice Court should have examined "whether a reasonable person with the trooper's expertise, and in the trooper's position, would have had probable cause for the arrest."  A suppression court must determine the existence of probable cause from an objective analysis of the relevant facts, rather than from a witness's subjective conclusion about whether probable causes exists.

Applying this test to the facts as recorded from the Mapp/Dunaway hearing, the Appellate Term found that probable cause existed to arrest the defendant for DWI.   (JTR/LC)

AD3 requires resubmission of dismissed charges after plea withdrawal (updated)

In People v. Bonville (3d Dept. 1/28/2010), the Third Department unanimously held that the People must resubmit dismissed charges to the Grand Jury in order to obtain a conviction on those charges.  The defendant was initially charged with Attempted Murder 2º, Assault 1º, Assault 2º, Criminal Use of a Firearm, and Unlawful Dealing with a Child.  After a plea negotiations with the People, the defendant pled guilty to Assault 2º and Unlawful Dealing with a Child.  The People's motion to dismiss the remaining charges was granted.  During sentencing, the court advised the defendant that it would not accept the People's sentencing recommendation, but rather impose a harsher sentence.  Thus, the defendant, upon an offer from the trial court to withdraw the plea, withdrew his plea.  The People subsequently purported to reinstate the entire indictment without resubmission to a grand jury (over the defendant's objection).  At trial, the jury found the defendant guilty of Assault 2º and Unlawful Dealing with a Child.    

The court agreed with the defendant's argument that the People's reinstatement of the dismissed charges without Grand Jury resubmission was barred by CPL § 210.20(4).  Resubmission, in turn, was prohibited (even with judicial approval) because of CPL § 210.20(4).  Moreover, the court noted that the harmless error doctrine did not apply "because the evidence submitted regarding the more severe charges could have 'induced the jury to find him guilty of the less serious offense.'" (quoting People v. Mayo, 48 N.Y.2d 245, 251 (1979)).  Thus, the court remanded the case and ordered a new trial on Assault 2º. 

UPDATED (2/5/2010): Instead of outright dismissal, the better practice is to have the guilty plea be in "full satisfaction of the indictment."  This way, if the plea is later withdrawn, the entire indictment will be automatically reinstated, per CPL § 220.60(3).  This was not possible in the Bonville case itself, since the defendant was indicted for  an armed felony and thus could only plead guilty to the top charge.  The better solution in such cases, if possible, is to negotiate the plea bargain before the case reaches the Grand Jury and proceed by superior court information.  If the plea is later withdrawn, the People can seek a indictment that charges the more serious crimes.  See CPL § 200.80.  (JTR/LC)

AD1, AD3, & AT2 - New Decisions

The First and Third Departments have posted new decisions.  There also new decisions from the Second Appellate Term.  (LC)

AT1 - New Decision

The First Appellate Term has posted new decisions.  (LC)

AD3 addresses guilty plea allocutions and speedy trial claims

In People v. Dalton (3d Dept. 1/28/2010), the Third Department unanimously held that a defendant's guilty plea was not knowingly, voluntarily, and intelligently entered, since he was erroneously advised that he could pursue, on appeal, his speedy trial claim.  The defendant was charged in a two-count indictment with CSCS 3º and Criminal Impersonation 2º.  As part of a plea agreement with the District Attorney, the defendant pled guilty to CSCS 5º.  However, the agreement purported to allow the defendant to retain a right to pursue appellate review of a 30.30 claim.  During the plea allocation, the trial court specifically advised the defendant that he would indeed maintain this right.    

Relying on People v Di Donato, 87 N.Y.2d 992 (1996), the court noted that a defendant generally “forfeit[s] his right to appellate review of his claim that his statutory right to a speedy trial was violated” (citations omitted).  The court noted that, because the trial court failed to advise the defendant of this rule and actually advised the defendant to the contrary in the plea allocution, the defendant’s plea “was not knowing, intelligent and voluntary.”  (JTR/LC)

AD1 reverses Falsifying Business Records conviction

In People v. Reyes (1st Dept. 1/28/2010), the defendant was a corrections officer charged with Rape 1º and 3º, which stemmed from an alleged rape of an inmate in her cell.  The defendant was also charged with Falsifying Business Records 1º and, in the alternative, Falsifying Business Records 2º.  Both of the falsification charges stemmed from the defendant's alleged falsification of a logbook entry to create an alibi.  A jury subsequently convicted the defendant of only Falsifying Business Records 2º.  He had objected to the submission of this lesser-included offense to the jury.  

In its analysis, the court noted that, since an element of the higher falsification charge was intent to conceal a crime, an acquittal on the higher falsification charge necessarily "entail[ed] a rejection of an intent to conceal a rape[.]"  Thus, the court concluded that an acquittal on the higher falsification charge and a conviction on the lower falsification charge would have been inconsistent, since the People linked both falsification charges in theory.  (JTR/LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Suppression issue splits AD1

Last week, People v. Reyes (1st Dept. 1/28/2010) drew a 3-2 split from the First Department.  At issue was whether the police had reasonable suspicion to attempt to forcibly detain and then pursue the defendant.  The police had received a vague radio dispatch "about a dispute with a knife" at a location.  There was no description of the alleged perpetrator.  When the police arrived at the scene, two men pointed to the defendant and said, "That's him, that's him."  The officers approached the defendant, attempted to apprehend him, but he resisted and fled.  Eventually the police tracked him to an apartment, kicked in the door, and arrested him.  Later, they learned that the defendant had stolen lottery tickets from a store.  The two men who pointed at him were the store's owners.  They informed the police that the defendant returned with winning tickets and pointed a gun at them when they refused to pay out.

The majority held that "the officers lacked valid grounds to forcibly detain defendant on the street and then pursue him when he fled."  Specifically:

When the officers arrived at the scene, no criminal activity was in progress. They arrived knowing only that a 911 call had been received about a vaguely described dispute with a knife; they lacked a description of the suspect and did not know who had called the police. The two unidentified men they encountered pointed out defendant without accusing him of any specific acts. Neither defendant's knife nor his imitation revolver was visible to the officers, and he was not engaged in any suspicious activity.

Under these circumstances, the officers would have been justified in conducting a [DeBour] level one inquiry by attempting to question defendant to clarify the situation, or in conducting a level two inquiry under the founded suspicion that defendant was involved in criminal activity. However, the officers' attempted detention of defendant when he tried to leave the location and their pursuit of him into the apartment building constituted an unjustified level three forcible seizure because the police lacked reasonable suspicion that defendant had committed a crime.

In dissent, Justice Buckley held that the unsolicited, accusatory pointing and statement, "That's him, that's him," was sufficient to give the police reasonable suspicion to detain the defendant. 

On balance, I agree with the majority, but I am troubled by the inevitable question, "What should the police have done?  Let the defendant get away?"  In response, I would say that the defendant did not flee until after the police approached him.  They could have quickly approached the two men, ask them why they were gesturing at the defendant, and then approach the defendant.  If the defendant then fled, or if he fled during the conversation with the store owners, the police would have been justified in pursuing the defendant.  As the majority notes, they could have also gone up to the defendant and engaged in a level one inquiry.

In my view, the fault here lies not with the police but with the 911/NYPD dispatcher, who either did not ask the caller what the dispute was about or did not communicate sufficient information to the patrol officers.  Had the police received slightly more information, the search may have been constitutional.

Part of the trouble with this case is that we know a lot more information about the defendant after the search than before it, and one's ex ante analysis can be clouded by information learned ex post.  After the search, we know that the defendant probably committed a theft, menacing, and weapons possession.  We thus know why the two men were pointing at the defendant.  We also know that he was armed (the search revealed a gravity knife and imitation revolver).  But from the officers' perspective before the search, they knew only that there had been a dispute and that two men were pointing and yelling at the defendant.  For all they knew, they may have been pointing at the defendant for a reason unrelated to the subject of the 911 call.  (LC)

AD2 - New Decisions

The Second Department has posted new decisions.  (LC)

AD1 & AD3 - New Decisions

There are new decisions from the First and Third Departments.  (LC)

AT2 - New Decision

The Second Appellate Term has posted new decisions.  (LC)

Welcome to new contributors to the blog

My research assistants, Darnisha A. Lewis and Joshua T. Reece, both 3L's at St. John's, are joining the blog as contributors.  They will be writing case summaries of Appellate Division decisions.  Their assistance will help increase the volume and diversity of cases that are summarized on the blog.

Both Darnisha and Joshua have a keen interest in criminal law, have taken numerous courses in criminal procedure and advocacy, and have interned at various criminal justice agencies. 

Welcome on-board, Darnisha and Joshua!  (LC)

AD1 rejects challenge to SORA Risk Assessment Instrument

In People v. Ferrer (1st Dept. 1/26/2010), the First Department unanimously rejected a challenge to the SORA Risk Assessment Instrument.  The defendant introduced the testimony of an expert witness, who contended that the RAI is unreliable and is not a scientifically accepted predictor of future dangerousness.  The expert testified that a different instrument, the STATIC-99, is more reliable.  The defendant presented evidence that he is a lower risk under the STATIC-99 than under the RAI.

Nevertheless, the court rejected the defendant's challenge because he failed to demonstrate that the RAI is unconstitutional.  The court noted that, after a SORA hearing, a court may depart downward from the RAI score in its discretion.  The RAI is thus merely presumptive.  "Here, the hearing court's decision indicates that it weighed the RAI against the defense evidence and arguments, and that it properly concluded that defendant had a moderate risk of reoffense, so that a level two assessment was appropriate." (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

Confrontation Clause violation results in reversal in AD2

In People v. Fairweather (2d Dept. 1/19/2010), the defendant was charged with Assault 1º and related offenses.  The conviction was reversed because of a Confrontation Clause violation; the court did not find it was harmless error.

The detective who arrested the defendant testified that he determined the defendant was a suspect after speaking with the complainant, who did not testify.  "The challenged testimony was improper, since it directly implied that the complainant identified the defendant as the perpetrator."  The court declined to apply the harmless error doctrine because the evidence of guilt was not overwhelming and the prosecutor had stated, in his opening statement, that the complainant would testify.

The Confrontation Clause claim was not preserved; however, the court reached the issue in the interest of justice.  Hence, the Court of Appeals cannot review this question.  (LC)

"That's Fine"

Under CPL § 30.30, an adjournment is not chargeable to the People if was with the consent of the defense.  In People v. Brown (2d Dept. 1/19/2010), the defendant entered into an agreement with the People that he would consent to every adjournment until such time as he requested a preliminary hearing in the local criminal court.  On the date in question, he asked for a preliminary hearing.  The following exchange then occurred:

THE COURT: All right, This is adjourned without date . . . [W]e will notify the parties.

DEFENSE COUNSEL: That's fine.

Was counsel saying the adjournment was fine?  In other words, was he consenting to the adjournment?  Or was he saying that the off-calendar notification of the adjournment date was fine?  The Second Department concluded it was the latter.  Stated another way, the statement was not an unambiguous expression of consent to the adjournment.  Accordingly, the time was chargeable to the People and the defendant's 30.30 motion should have been granted.

Lesson for prosecutors?  Make sure the record is clear; otherwise, one runs the risk that the motion court may, in hindsight, view the record as ambiguous and charge the time to the People.  For defense counsel, it was probably a good idea to have said, "We do not consent to the adjournment but we are fine with the court's proposal to notify us off-calendar of the new date."  (LC)

AD2 & AD3 - New Decisions

There are new decisions from the Second and Third Departments.  (LC)

Speedy sentencing

"Speedy trial" is a frequently litigated claim in criminal cases.  There is a related concept that comes up only once in a while: speedy sentencing. A defendant who is convicted of a crime has a constitutional right to be sentenced in a timely fashion.  Like the constitutional speedy trial rule (see People v. Taranovich, 37 N.Y.2d 442 [1975]), only egregious and prejudicial delays will result in a violation.

In People v. Robinson (1st Dept. 1/21/2010), the First Department found that the defendant had not succeeded in establishing a speedy sentencing violation.  There was an 11-year delay between his guilty plea and sentence.  However, most of the delay was attributable to the defendant.  He failed to appear for his first sentencing date in 1997 and "remained at large and continued to disregard his legal duty to present himself for sentencing in New York."  He argued on appeal that there were two occasions when the People could have had him produced for sentencing.  On the first, he was arrested in New Jersey in 1999.  However, there was no evidence the People were aware of his arrest until after he had been released.  The second occasion was an arrest in Pennsylvania in 2005.  The People made a prompt request for extradition, but the defendant was released by Pennsylvania authorities before the People could followup.  (LC) 

Reversal for prosecutorial misconduct

Today, the First Department reversed a burglary conviction from Bronx County because the trial prosecutor committed misconduct.  Prosecutorial misconduct claims generally require proof of a pattern of missteps; a single, isolated comment that, in hindsight, was better left unsaid, will not be sufficient to reverse a conviction.  Frequently, prosecutorial misconduct claims arise from improper questions during cross-examination of the defendant and inappropriate statements during summation.

In People v. Ortiz (1st Dept. 1/21/2010), the court found the following errors by the prosecutor:

• violating the trial court's Sandoval ruling; 
• trying to impeach the defendant "with his supposed dishonesty in initially entering pleas of not guilty in prior cases followed by allegedly belated pleas of guilty";
• introducing a mugshot of the defendant's girlfriend, who did not testify, and referring to her criminal history, which had the effect of "suggest[ing] that defendant was associated with a disreputable person";
• arguing, in summation, that the defendant had a propensity for committing crimes;
• stating the defendant "knows he did it"; and
• telling the jury "he was waiting for the jury to 'give him his razor back and let him walk out the door.'"

While none of the summation-related claims were properly preserved, the court nevertheless reached them in the interest of justice.  The court also found the errors were not harmless.

Importantly, this case demonstrates how the cumulative effect of multiple errors by the prosecutor can result in a reversal.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD1, AD2, AD3, & AT1 - New Decisions

New decisions from the First, Second, and Third Departments, as well as the First Appellate Term.  (LC)

AT1 - New Decision

There is a new decision from the First Appellate Term.  (LC)

COA & AD1 - New Decisions

The Court of Appeals has announced new decisions:

• People v. Ramos (Ct. App. 1/12/2009) (SSM) - business record improperly admitted.  Reversal.
• People ex rel. Blake v. Pataki (Ct. App. 1/12/2009) (SSM) - extradition.  Fugitive's equitable argument had to be directed at the demanding state, in this case South Carolina.

In addition, there are new decisions from the First Department.