New York Criminal Law and Procedure

Court suppresses evidence based on admission of officer that he lacked probable cause

This week, the City Court of Rye (Lane, J.) suppressed evidence obtained as a result of a DWI checkpoint.  The defendant was stopped by a police officer, who noticed that the defendant had bloodshot eyes and the strong odor of an alcoholic beverage on his breath.  The defendant was pulled over to the side of the road for a secondary inspection and given three field sobriety tests, all of which he failed.  The court characterized portions of the officer's testimony as follows:

The police officer credibly testified during Defendant's counsel's well plotted cross-examination that he violated portions of the General Order in dealing with the Defendant. Significantly he testified that, in his view, he lacked the "probable cause" required by the protocol to both ask the Defendant to move his car to the side of the road and then to have him step from his vehicle to administer the psycho motor (i.e., field sobriety) tests.

Relying on the officer's "word" that he lacked probable cause, City Court held that it had "no choice but to conclude that these actions exceed the limited quantum of individual discretion allowed by the Scott standard."  In a footnote, however, the court acknowledged:

Ironically, this court believes (and, quite possibly, the experienced and able police officer may have believed at the time) that his observations of the Defendant's eyes and breath supplied the requisite reasonable suspicion for his subsequent directives to the Defendant and the "probable cause" (were that term to be used in its traditional legal sense outside the context of the protocol) for the Defendant's arrest.

At first blush, it appears that the court determined that the officer's legal conclusion took precedence over the court's own analysis of the legal standard.  If that is the case, I disagree with the court's holding.  Ordinarily, an officer's subjective reasons for conducting a search are irrelevant.  It is the court's determination of reasonable suspicion or probable cause that controls.  In the converse situation (if the officer subjectively believed that he had reasonable suspicion), the court would not have stopped its analysis but instead would have objectively determined if the facts in fact warranted the legal conclusion.  However, perhaps what the court was saying was that the police protocol in question required certain specific facts and the officer, under cross-examination, admitted those facts were not present.  This would explain why the court, in the body of its opinion, stated that "probable cause" had a unique and specific definition under the checkpoint policy.  If that was the case, then I would agree that the officer's admission warranted suppression.  It would be interesting to know more about Rye's checkpoint policy and what additional facts, if any, --- beyond bloodshot eyes and odor of alcoholic beverage --- are required for a secondary detention at a checkpoint.  (LC)

AT1 - New Decisions

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

AD2 & AD3 - New Decisions

The Second and Third Departments have posted new decisions.  (LC)

NYPD's illegal destruction of fireworks results in preclusion of evidence

June and July are busy months for illegal fireworks.  The NYPD and other police agencies step up enforcement efforts.  People v. Watson (Bronx Sup. Ct. 7/14/2009) (Price, J.) deals with the interesting but troublesome question of what the police must do with the fireworks that they seize.  The case highlights a split within many police departments between "enforcement" and "operational" units.  In many departments, fireworks and other explosives are handled by a bomb squad, which is not typically involved with traditional enforcement activities, such as making arrests or testifying in court.  As a result, they may not be as familiar with court procedure as other officers.

In Watson, Justice Price took the drastic step of imposing preclusion as a remedy for the unauthorized destruction --- by the NYPD Bomb Squad --- of the alleged fireworks that were seized from the defendant.  The People acknowledged that the police destroyed the seized evidence in violation of Penal Law § 405.05, which provides: 

Fireworks possessed unlawfully may be seized by any peace officer, acting pursuant to his special duties, or a police officer, who must deliver the same to the Magistrate before whom the person arrested is required to be taken. The Magistrate must, upon the examination of the defendant . . . determine whether the fireworks had been possessed by the defendant in violation of the provisions of section 270.00; and if he finds such fireworks had been possessed by the defendant, he must cause such fireworks to be destroyed, in a way safe for the particular type of such fireworks, or be delivered to the district attorney of the county in which the defendant is liable to indictment or trial, as the interests of justice and public safety may, in his opinion, require.

Penal Law § 405.05 reflects a careful balancing between the police department's legitimate interest in not leaving large quantities of explosives lying around and the defendant's right to present a defense on an element of the crime.  

Regarding the sanction, Justice Price held that preclusion and not an adverse inference charge was the appropriate remedy for the violation of Penal Law § 405.05 and the corresponding constitutional duty of the State to preserve evidence:

This court is certainly reluctant to preclude the People's evidence. Under all the circumstances presented to this court, however, this court has come to the inescapable conclusion that it is the only sanction commensurate with the intentional, inexcusable and complete destruction of the alleged fireworks. Combined, the officers' abject failure to comply with PL 405.05, failure to notify or consult with the District Attorney, failure to preserve a sample, failure to perform any physical or chemical analysis, failure to photograph the contents of the boxes, failure to videotape the destruction proceeding, and failure to memorialize a complete record of the officers' findings and observations before the defendant had an opportunity to inspect them, deprived the defendant of his right to a fair trial.

The People's argument that preclusion is tantamount to an outright dismissal due to the lack of other evidence to establish the charged offenses merely strengthens this court's analysis warranting preclusion. If, indeed, the testimony and evidence concerning the seized fireworks is central to the prosecution's case, it stands to reason that it is also central to the defendant's ability to prepare a meaningful defense. Consequently, their immediate and unilateral destruction in contravention of PL 405.05 unjustifiably prejudices defendant. It is entirely conceivable then, that imposing the sanction of preclusion will resonate so as to ensure future compliance with New York Penal Law § 405.05.

(LC)

AD2 - New Decisions

The Second Department has posted new decisions.  More on People v. Sayers --- a prosecutorial misconduct case out of Queens County --- later.  (LC)

AD3, AT1, and AT2 - New Decisions

There are new decisions today from the Third Department, the First Appellate Term, and the Second Appellate Term.  (LC)

AT2 - New Decision

There is a new decision from the Second Appellate Term, addressing the issue of sua sponte dismissal of superseding accusatory instruments.  (LC)

AD1 - New Decisions

The First Department has posted new decisions.  (LC)

AD3 - New Decisions

The Third Department has posted new decisions.  (LC)

Batson Violation in Queens Case

In People v. Hall (2d Dept. 7/14/2009), the Second Department has reversed a defendant's conviction for Robbery 1˚ and CPW 4˚ because the prosecutor used peremptory challenges against a black venireperson.  The court found the prosecutor's stated reasons---that the juror was in a "helping profession" and seemed to be of similar age to the defendant's mother, who was an alibi witness---to be pretextual.  The defense was able to point to other, non-black venirepersons who were also in the "helping professions" or who were also close in age to the defendant's mother but who were not struck.  (LC)

AD2, AT1, & AT2 - New Decisions

There are new decisions from the Second Department, and First and Second Appellate Terms.  (LC)

Guilty plea vacated for failure to advise of correct term of license suspension

In People v. Castellini (App. Term. 1st Dept. 7/14/2009), the First Appellate Term reversed and vacated a defendant's guilty plea because the court incorrectly advised the defendant about one of the consequences of her license suspension.  The court stated that her license would be suspended for 90 days; in fact, the required length was one year.  "While in some jurisdictions the loss of a driver's license 'result[s] from the actions taken by agencies the court does not control,' and thus is considered a collateral consequence (People v Ford, 86 NY2d at 403, citing Moore v Hinton, 513 F2d 781 [5th Cir 1975]), the license sanction here involved constituted punishment directly imposed by the court as a result of defendant's guilty plea (see Penal Law § 1193[2][a], [b]), and was thus a direct consequence of the plea. The court's error is not subject to harmless error analysis (see People v Hill, 9 NY3d [*2]189, 192 [2007], cert denied __ US __ 128 S Ct 2430 [2008]), and renders the plea invalid."  (LC)

AD1 & AT1 - New Decisions

There are new decisions from the First Department and First Appellate Term.  (LC)

Blog Posts During the Next Week

I am in Africa until July 13, 2009.  Until that time, my blog posts may be sporadic at best.  Regular posts will resume after the 13th.  (LC)

AD1, AD2, AD3, AD4, AT1, & AT2 - New Decisions

Thursday was a busy day for the intermediate appellate courts.  The First, Second, Third, and Fourth Departments, as well as the First and Second Appellate Terms, each issued decisions.  (LC)