New York Criminal Law and Procedure

Evidence flowing from an illegal arrest suppressed at trial

 

In People v. Williams (4th Dept. 12/30/2010), the defendant appealed two separate convictions: the first was for Criminal Possession of a Weapon 3° and the second was for Burglary 2°. The court agreed with the defendant’s argument that money taken from the defendant’s pocket by a police officer should have been suppressed as “fruit of an unlawful arrest.” 

The Defendant was suspected of various residential burglaries occurring at night. As a result, police obtained a warrant authorizing GPS tracking of the defendant’s car. At 3:00 am on the night of the burglary, the vehicle left the Defendant’s residence, traveled east on I-490, and parked in a neighborhood near the disputed burglary. Approximately one hour later, the vehicle traveled west on the same highway, where it was stopped by police for speeding.  The police officers had reports of “possibly suspicious behavior.” They stopped the car, requested the driver's license and registration, and asked him to exit his vehicle. 

At this point, no probable cause existed to arrest him on Burglary charges. However, there was sufficient reason to stop him, ask him for his license and registration, and order him out of the car, since he was speeding.  Nevertheless, the police went further and engaged in an “intrusion amounting to arrest” requiring probable cause. Specifically, the defendant was frisked, handcuffed, and put into a police car. During the frisk, an officer felt a bulge in the defendant’s pocket that felt like paper. The bulge turned out to be cash, which matched both in amount and denomination with what had recently been stolen. Further, the Defendant lied about his destination: he said he was on his way to Binghamton, but needed to return home for money. At this point, the burglary had been confirmed. The officer testified that the defendant was detained for about 15-20 minutes. 

The majority held that the officers also should not have detained the defendant while other officers attempted to ascertain whether the burglary had been committed without evidence establishing probable cause. Thus, this arrest was illegal. Further, the money taken from his pocket was suppressed because it “flowed directly from the illegal arrest.”  The court went on to hold that the erroneous admission of the unconstitutionally seized evidence (the money) was not harmless error.  The money was the only evidence connecting the Defendant to the burglary. Since this conviction was reversed, the first appeal was also reversed, since it was induced by a promise of a concurrent sentence. 

Justices Scudder and Martoche dissented and argued that the money seized was not the product of an unlawful arrest. Specifically, that these facts fit the principle that if investigating possible criminal activity is going to be served, the police must be able to detain an individual for longer than a brief time period. 

Justice Scudder emphasized that when the police officers knew the defendant was lying about his destination, the matter escalated from reasonable suspicion to probable cause to believe this defendant committed the burglary and justified his arrest. 

Justice Martoche dissented further and argued that the error was not harmless beyond a reasonable doubt because the jury was presented with significant circumstantial evidence of the defendant’s guilt:

defendant drove to the neighborhood where the burglary was committed and circled around and parked for approximately 25 to 30 minutes near the home that was burglarized; items from a purse were found strewn in the vicinity where defendant parked, within minutes after defendant left the area; the purse and items found were missing from a home in the neighborhood where the burglary occurred; partial tread marks on the kitchen floor at the burglarized home matched the sneakers that defendant was wearing when he was apprehended, and did not match shoes owned by the owners of the burglarized home; canine tracking behind and up to the back of the homes in the neighborhood eventually stopped at the burglarized home; and defendant made inconsistent statements to the police when discussing his activities that evening and his behavior was of a suspicious nature. 

(RB/LC)

 

Running from warrant location may produce reasonable suspicion

Reasonable suspicion may arise when a suspect flees the location where a warrant is being executed.

In People v. Gray (4th Dept. 10/1/2010), as the police were executing a valid search warrant on the defendant’s residence, the defendant ran through the residence, climbed a fence, and attempted to flee the area.  The police apprehended the defendant.  Subsequently, the police recovered tangible property from the defendant’s residence, from the defendant’s person, and obtained statements from the defendant.  The motion court suppressed the statements and tangible property on the ground that the police lacked reasonable suspicion to pursue the defendant.

The People appealed, and the Fourth Department unanimously reversed, holding that the trial court erred in finding reasonable suspicion.  The court reasoned that the threshold for reasonable suspicion was satisfied by citing People v. Sierra, 83 N.Y.2d 928 (1994), for the precedent that flight in response to approaching police, combined with other circumstances indicative of criminal activity, may be sufficient to give rise to reasonable suspicion.  The court indicated that the evidence obtained subsequent to the valid pursuit, arrest, and warrant were erroneously suppressed.  (MM/LC)

Irreconcilable defenses create grounds for new trial

In People v. Nixon (4th Dept. 10/1/2010), both defendants were charged with Criminal Possession of a Weapon 2°.  The police found a gun in a car in which both defendants were present.  Each argued that the other had been in sole possession of the firearm. The Appellate Division reversed, reasoning that the antagonistic defenses necessarily created a new prosecutor for each defendant: his co-defendant's attorney. Thus, severance was required. (RB/LC)

Just in time for Halloween ...

Here is a new one.  A defendant was found guilty of body stealing (eight counts), opening graves (eight counts), unlawful dissection of a human body (eight counts) and scheme to defraud in the second degree.  The appeal raised fairly standard legal issues (legal sufficiency, evidence, effective assistance of counsel).  But the court's decision gave very little about what led to such bizarre charges.  Essentially, the defendant, a funeral home director, was part of an illegal "body processing" ring.  He harvested parts before cremating the bodies.  The parts were sold to a lab in New Jersey.  Some local news reports of the case are here and here.  (LC)

AD1, AD2, AD3, & AD4 - New Decisions

It is summertime and the appellate courts are still pretty quiet.  However, the are a few, new decisions from the First, Second, Third, and Fourth Departments.  (LC)

Batson violation found

In People v. Morgan (4th Dept. 7/2/2010), the Appellate Division held that Supreme Court erred in permitting the prosecutor to exercise a peremptory challenge to exclude a black prospective juror. After the defendant's Batson objection, the prosecutor explained that she excluded the juror because: (1) the prospective juror indicated she served on a criminal case "years ago," however she could not recall the details of the case, (2) the prospective juror acknowledged that she knew people who used cocaine, and (3) the prospective juror's son had been accused of a crime "years ago" and was not convicted. 

The defense countered that the only element of the prosecutor's argument approaching relevancy would have been the prospective juror's son. Subsequently, the defense counsel asked the court to articulate the grounds for its ruling, and the court stated that "the grounds were quite sufficient as stated by the District Attorney" and that no pattern of discrimination existed. 

The trial court's acceptance of the prosecutor's reasons were "troublesome" to the Fourth Department, especially because they were rebutted by the defense and were not assessed for credibility. Two of the explanations were rebutted by showing that similarly situated prospective jurors were not challenged. Here, the prosecutor met her burden at the second stage of Batson: giving race-neutral reasons for the challenge. However, these reasons were accepted without an assessment of credibility or possible pretext under step three.  

The majority also noted its "strong disapproval of the misconduct of the prosecutor on summation in improperly shifting the burden of proof onto defendant and in improperly vouching for the credibility of the People's witnesses." 

Justices Scudder and Carni dissented, arguing that the step three analysis was indeed fulfilled. Emphasizing Wells, 7 NY3d at 59, and that the People met their burden by "offering [three] facially neutral reason[s] for the challenge - even if [those] reason[s] [were] ill-founded - so long as the reason[s] [do] not violate equal protection …, we cannot say that the prosecutor's justifications for the use of the peremptory challenge were inadequate." Defendant, also, as the moving party, had the burden of persuading the court that the prosecutor's reasons were merely a pretext for intentional discrimination. The People, the dissenters argued, had met their burden. (RB/LC)

AD4 reverses for failure to grant adjournment at sentencing

The defendant in People v. Bullock (4th Dept. 7/9/2010), appealed from a conviction of Aggravated Assault upon a Police Officer or a Peace Officer. The court agreed with the defendant that the trial court erred in sentencing the defendant without counsel. The defendant was initially assigned counsel; subsequently, the court sentenced him to a 15-year determinate term of incarceration, but would reconsider the sentence if defense counsel could present "compelling reasons" to do so. At this point, the defendant no longer wanted the assigned attorney to represent him, and the court granted a motion relieving counsel. The defendant then informed the court that he intended to retain new counsel; a 90 day adjournment was granted. On the adjournment date, the defendant appeared pro se to explain that while his family had the money to retain counsel, the new attorney was not available for another month. The court then denied this second adjournment request. The defendant, speaking on his own behalf, stated that he was having difficulty obtaining documents establishing mitigating factors entitled him to a lesser sentence. The trial court interpreted this as a waiver of his right to counsel and proceeded to sentencing. 

The court cited People v Smith, 92 NY2d 516, 521, stating "egregious conduct by defendants can lead to a deemed forfeiture of the fundamental right to counsel," but here, there was no such conduct to warrant this extreme analysis. The court added that no warning was given to the defendant that sentencing would proceed without new retained counsel. Thus, there was nothing supporting the point that this was a strategy to unreasonably delay sentencing was designed. The court added that if the defendant was warned that sentencing would proceed, a forfeiture analysis might have been appropriate. 

Judge Carni dissented, arguing that the majority incorrectly relied upon the absence of a "warning;" and that such warning was ultimately irrelevant to a analysis involving forfeiture. The dissent explained that waiver and forfeiture are often confused. Forfeited rights can occur without the defendant's knowledge or consent, while waiver assumes election to relinquish a known right. Additionally, the dissent presented cautionary remarks regarding the public policy ramifications involved in an over-reliance on the right to counsel. He concluded that the right to counsel at trial is more critical than the loss of counsel at sentencing. Concerned with the possibility of adjournment abuse, and emphasizing that the defendant discharged his retained attorney in the first instance, the dissent interpreted the majority's opinion as "tantamount to transferring the control of the court's sentencing calendar to criminal defendants." Indeed, the dissent contends that "it is incumbent upon the defendant to demonstrate that the requested adjournment has been necessitated by forces beyond his [or her] control and is not simply a dilatory tactic." 

Interestingly, the facts giving rise to this case was only brought up in the dissenting opinion. In October 2007, while incarcerated, the defendant and other inmates created an elaborate escape plan resulting in serious injuries to a correction officer. After summoning an officer closer to their cell under the guise of a routine toilet clog, the defendant repeatedly struck the correction officer with a brick or ceramic tile inside a sock while being escorted to the bathroom. (RB/LC)

Ambiguous plea record creates sentencing confusion

In People v. Cornell (4th Dept. 7/9/2010), the court reversed an appeal of an Arson 2° conviction and agreed with the defendant's argument that the trial court failed to advise him that the sentencing would include a period of post-release supervision (PRS). 

The court emphasized that trial courts have a "constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences." People v. Ford, 86 NY2d 397, 402-403. Also, the court stressed that due process requires that the record establish a voluntary and intelligent choice among alternatives open to the defendant. Here, the court offered a sentence of 14 years plus a five year PRS period, which the defendant rejected. Then, after the trial began, the court had an off-the-record discussion with the defendant and defense counsel; after the discussion, the court reiterated, on-the-record, that it would sentence the defendant to no more than 14 years' imprisonment if he pleaded guilty to Arson 2°. However, this time, there was no mention of a period of PRS. Even though the defendant rejected the same offer earlier that day, he stated that he understood and accepted the offer. Later, he was sentenced to a determinate term of a imprisonment of 14 years and PRS of five years. 

The People argued that the plea need not be vacated because the rejected plea offer included an advisement, by the court, that the sentence would include PRS. However, the appellate court held that the record did not clearly establish that PRS was part of the sentence. Rather, the accepted period was a maximum of 14 years and did not clearly state any other conditions. So, the defendant was not necessarily informed that the sentence could potentially be 14 years of imprisonment plus the 5 years of PRS. The fact that the prosecutor mentioned a period of PRS earlier in the day did not excuse the plea court from fulfilling its constitutional duty. 

Judges Smith and Sconiers dissented, arguing that the record established that the defendant was advised of the PRS conditions and characterized the two plea discussions as "an ongoing plea allocution." Thus, there was no need for the plea court to reiterate that the sentence would include PRS.  

The case rests upon the interpretation of the plea record: specifically, whether two offers were made, or, as the dissent emphasizes, the record reflects an ongoing, uninterrupted negotiation. Apart from the constitutional duty for a defendant to completely understand his sentence and various conditions of it, the majority viewed the off-the-record commentary and the beginning of the trial as a sufficient interruption in the plea negotiations to establish two separate offers, each with different conditions. The best practice is, of course, to make the record abundantly clear and always state that PRS is mandatory and what the length of PRS will be at sentencing. (RB/LC)

AD1, AD2, AD3, & AD4 - New Decisions

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

Fifth Amendment not violated by surreptitious evidence gathering

In People v. Gibson (4th Dept. 6/11//2010), the defendant was convicted of Robbery 1° stemming from DNA evidence found on a cap worn by the perpetrator a short distance from the scene of the robbery.  The investigating officer obtained a sample of the defendant’s DNA, for comparison to the DNA found on the cap, while the defendant was in custody on an unrelated matter.  While in custody, the defendant asked to speak to the officer because they were familiar with each other from prior dealings.  During the meeting in the investigator’s office, the investigator offered the defendant a cigarette.  The defendant smoked the cigarette and left the remains in an ashtray.  The investigator obtained a sample of the defendant’s DNA from this discarded cigarette. Later testing revealed a match to the DNA on the cap worn during the robbery.

The defendant appealed his conviction on the ground that the trial court erred when it refused to grant his motion to suppress the DNA evidence obtained from the cigarette.  The defendant argued that his Fifth Amendment right to counsel was violated because his attorney was not present during the incident where the sample DNA was collected.  Furthermore, the defendant argued that his Fifth Amendment right against self-incrimination was violated by the surreptitious seizure of his DNA.

The Fourth Department rejected the defendant’s arguments with support from the Court of Appeals and the Supreme Court.  As established in Schmerber v. California, 384 U.S. 757, 761 (1966), Fifth Amendment rights do not apply to evidence that is not “testimonial or communicative” in nature.  The Court of Appeals has explained that evidence is testimonial or communicative when it reveals a person’s subjective knowledge or thought process.  The Fifth Amendment thus does not protect an accused from producing real or physical evidence.  After holding that the defendant’s right against self-incrimination was not violated, the Fourth Department inferred that the derivative right to counsel was not violated either.

Judge Green dissented, arguing that the evidence was obtained in violation of the defendant’s right to counsel.  While the defendant was in custody on matters unrelated to the robbery investigation, he was represented by counsel, consequently he could not be interrogated on any matter related or unrelated to the represented matter without counsel.  The dissent noted that the investigating officer was aware that the defendant was represented by counsel, and argued that the scheme to obtain the defendant’s DNA without consent and without counsel’s awareness was in violation of the defendant’s constitutional rights. 

The dissent, however, did not indicate how it was that the defendant was "interrogated" by the seizure of the cigarette.  This is the critical distinction under the Fifth Amendment.  

We are likely to see more of these types of cases and issues as police departments make expanded use of DNA evidence in non-homicide crimes.  (MM/LC)

COA, AD1, AD2, & AD3 - New Decisions

The Court of Appeals announced new decisions yesterday:

• People v. Reome (Ct. App. 6/17/2010) (Smith, J.) (6-1) - whether accomplice testimony was corroborated
• People v. Valencia (Ct. App. 6/17/2010) (5-1-1) - depraved indifference assault not found in vehicular DWI case
• People v. Williams (Ct. App. 6/17/2010) (SSM) - PSR and double jeopardy
• People v. Hassell (Ct. App. 6/17/2010) (SSM) - PSR and double jeopardy

In addition, there are new decisions from the First, Second, Third, and Fourth Departments.  (LC)

New Decisions

There are new decisions from nearly every court!

First, the Court of Appeals (summaries of these will be posted later this week):

• People v. Dreyden (Ct. App. 6/15/2010) (Pigott, J.) (6-1) - accusatory instrument deficient if it does not demonstrate how a knife is a "gravity knife"
• People v. Mitchell (Ct. App. 6/15/2010) (Read, J.) (7-0) - transfer of case for probation supervision does not transfer authority to decide 440 motion 
• People v. Ballman (Ct. App. 6/10/2010) (Lippman, C.J.) (7-0) - elevation of DWI for out of state conviction prior to 2006
• People v. McLean (Ct. App. 6/10/2010) (Smith, J.) (4-3) - preservation of right to counsel violation claim
• People v. Frederick (Ct. App. 6/10/2010) (7-0) - retrial issues

There are also new decisions from the First, Second, Third, and Fourth Departments, along with the Second Appellate Term.  (LC)

COA, AD1, & AD4 - New Decisions

There are new decisions from the Court of Appeals:

• People v. Backus (Ct. App. 5/11/2010) - An interesting case for those interested in the nuances of appellate remedies.  At the Appellate Division, the defendant's  sentence was vacated because his consecutive sentences were illegal.  The case was remanded for resentencing.  The intermediate appellate court went on to authorize the People to move to vacate the plea and set aside the conviction in its entirety.  On the defendant's appeal to the Court of Appeals, the People argued that the sentences were properly served consecutively.  However, since they did not cross-appeal from the Appellate Division order, the Court of Appeals could not consider the argument.  The Court of Appeals agreed, however, with the defendant's argument that vacatur was not possible.  The defendant must be sentenced in accordance with the law.  The guilty plea cannot be vacated under the circumstances.
• People v. Gravino (Ct. App. 5/11/2010) (Read, J.) - SORA and plea conditions are collateral, not direct, consequences of a guilty plea.  Therefore, a defendant does not have to be advised of them before pleading guilty.

In addition, the First and Fourth Departments posted new decisions.  (LC)

AD4 grants 440 motion on IAC claim, relying on related 2d Cir. case

The Fourth Department unanimously reversed the Supreme Court, Erie County, last week and granted a defendant's CPL 440.10 motion.  In People v. Okongwu (4th Dept. 3/19/2010), a jury convicted the defendant and two codefendants in 1993 of numerous counts of Rape 1º, Sodomy 1º, and Sexual Abuse 1º, among other crimes.  The convictions arose out of a several alleged episodes where the defendant and codefendants brutally raped Okongwu's daughters.  After exhausting his direct appeals and state post-conviction remedies, Okongwu's codefendant Eze petitioned the Western District of New York for habeas relief, claiming ineffective assistance of counsel.  The District Court denied Eze's petition.  However, the Second Circuit reversed the District Court's judgment, holding that Eze's trial counsel's alleged conduct "if unexplained, would constitute constitutionally deficient representation[.]"  The Second Circuit further held that the conduct "would likely establish a reasonably probability that, but for the errors, the result of Eze's trial would have been different."  Upon remand, the District Court held a hearing on Eze's claim and subsequently granted Eze's habeas petition.  

Relying on the Second Circuit's opinion in Eze's case and having exhausted his own direct appeals, Okongwu filed a CPL 440.10 motion to vacate his judgment of conviction.  Okongwu also argued that his counsel was ineffective, claiming that his attorney "failed to introduce evidence of a ... medical examination of one of the victims[.]"  The examination could have undermined the claim that sexual abuse caused the victim's physical condition.   Trial counsel claimed that he did not introduce the examination, because it could indicate the defendant perpetrated a larger pattern of sexual abuse.  Additionally, Okongwu claimed that his attorney "failed to obtain experts to refute the People's experts" and that he "failed to introduce evidence to discredit those experts."   The defendant's attorney claimed that he attempted to contact "between 5 and 10 experts but was blocked from contact by the experts' staff[s.]"  The Supreme Court denied Okongwu's motion.  

Subsequently, the Fourth Department gave permission to appeal and reversed.  In its analysis, the Fourth Department "afford[ed] 'great weight' to the determination[] of [the] federal court[] on [a] federal constitutional issue" (quoting New York R.T. Corp. v. City of New York, 275 N.Y. 258, 265 (1937)).  The court then examined the defendant's claims.  First, the court concluded that "defense counsel failed to 'explain [] convincingly" that his decision to exclude the medical examination "result[ed] from a sound trial strategy."  The court reasoned that the records could have been redacted "to avoid any negative inferences against [the] defendant."  Additionally, the court rejected defense counsel's explanation for his failure to rebut the People's experts.  Finally, the court cited defense counsel's failure to exploit the victims' inconsistent statements and noted that he failed to "cross-examine the People's psychologist concerning [child sexual abuse syndrome.]"  Therefore, the court concluded, "counsel's representation 'fell below an objective standard of reasonableness[,]'" thus undermining "confidence in the outcome of [the] defendant's trial[.]"  (JTR/LC)

AD4: Consent exception not proven

In People v. Forbes (4th Dept. 3/19/2010), the defendant was convicted of Robbery 1º.  On appeal, he contended that the Supreme Court erred when it denied his motion to suppress tangible property the police retrieved during the warrantless entry and search of his home. 

The record of the suppression hearing revealed that the police officers went to the defendant's home in order to take him into custody for questioning. The People relied on the consent exception for the subsequent entry into the defendant's home.  However, the hearing testimony indicated that when the officers arrived at the defendant's residence and asked him for his identification, they immediately entered the defendant's home without waiting for a response or asking permission to come in.  Therefore, they never obtained the defendant's consent, no exigent circumstances existed, and the tangible property was fruit of the unlawful entry and should have been suppressed.  (DAL/LC)

AD4 considers pair of cases dealing with definition of "physical injury"

The Fourth Department recently considered two cases that presented the same issue: whether the victims suffered "physical injury" for purposes of the defendants' assault convictions. 

In People v. Peterson (4th Dept. 3/19/2010), the two victims were police officers. One officer testified that the defendant injured the officer's elbow, which caused him to undergo medical treatment, physical therapy, and the use of anti-inflammatory medication. The injury lasted for several months, requiring the aid of an arm band to support the tendons in the arm.  The other victim testified that the defendant punched him in the eye, causing his eye to swell and contusions to develop. According to the court, these injuries exceeded mere "slaps, shoves, kicks and the like," and therefore the People provided legally sufficient evidence for the jury to conclude that the defendant committed Assault 2º (intentional causing physical injury to a police officer). 

Similarly, in People v. Newman (4th Dept. 3/19/2010), the injured police officer testified that he lost consciousness when the defendant punched him in the face. He also testified that this injury caused him to experience headaches and pain in his jaw for approximately one week after the assault. Based on the victim's account of his injuries, the court held that the defendant's conviction was supported by legally sufficient evidence.(DAL/LC)

Sometimes pro se supplemental briefs are winners

It is not often that a pro se supplemental brief --- a brief filed by the defendant himself, raising claims not asserted in his appointed attorney's brief --- persuades a court.  After all, if the arguments were winners, appointed counsel probably would have made them, right?  In People v. Layou (4th Dept. 3/19/2010), the Fourth Department unanimously reversed a defendant's conviction based, in part, on arguments the defendant made in his pro se supplemental brief.

At the time the defendant was approached by police, he was sitting "in a vehicle at 3:40 a.m. in a parking lot located in the general vicinity of burglary that the police were investigating[.]"  Subsequently, an officer pulled into the lot behind the defendant's vehicle.  The police vehicle prevented the defendant from driving away.  Defendant later made certain statements to police, who searched the defendant and found cocaine.  At trial, the defendant was convicted of CPCS 7º, Obstructing Governmental Administration 2º, and Resisting Arrest.

The defendant argued that police "seized" his vehicle by pulling behind him in the parking lot; the defendant further argued that the police lacked reasonable suspicion for this seizure.  Therefore, the defendant concluded, the trial court erred by refusing to suppress the fruits of the seizure, including the cocaine and the defendant's statements to police.  Considering that (1) the police did not observe the defendant engage in "any conduct indicative of criminal activity" at the time of seizure; (2) the complainant reporting the burglary "did not mention that the burglars fled in a vehicle;" and (3) the police "had no other information ... connect[ing] the defendant ... with the reported burglary[,]" the court agreed with the defendant.

Additionally, the defendant's appointed attorney argued in his primary brief that the cocaine should have been suppressed because of "deficiencies in the chain of custody."  Here again, the court agreed, noting a month-long gap in the chain of custody for which the People had failed to provide an explanation.  While noting that "reasonable assurances of the identity and unchanged condition of the evidence" may revive the admissibility of evidence with gaps in the chain of custody, the court also noted that the People provided no such assurances here.  Accordingly, the Fourth Department unanimously reversed the defendant's convictions, dismissed the indictment, and remanded the matter to the Oswego County Court.  (JTR/LC)  

AD4 - New Decisions

The Fourth Department has posted new decisions.  (LC)

AD1, AD3, AD4, & AT1 - New Decisions

There are new decisions today from the First, Third, and Fourth Departments, as well as the First Appellate Term.  (LC)

CNH prosecution fails on causation and legal omission grounds

The Fourth Department recently concluded that defendant's observation of the victim using heroin in the defendant's car, removal of the victim from his car, and leaving the victim on a lawn inside a trailer park did not merit criminal liability.  Therefore, the court unanimously reversed the defendant's conviction of Criminally Negligent Homicide.

In People v. Erb (4th Dept., 2/11/2010), the defendant first met the victim on the day of her death.  During that day, the defendant and the victim used cocaine.  After driving the victim to a trailer park where the victim's mother lived, the defendant observed the victim injecting herself with heroin.  The victim did not obtain the heroin from the defendant, nor did she obtain the heroin with his assistance.  During the car ride, the victim lost consciousness, and the defendant was unable to wake her.  Since the defendant did not know the address of the victim's mother, he left the victim on a lawn at the trailer park; at that time, the victim "was breathing and making noises[.]"  Several hours later, the victim was found unconscious, and she died shortly thereafter at a hospital.

In its analysis, the court considered whether the defendant's "conduct constituted not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it."  In concluding that the defendant's conduct did not merit criminal liability, the court noted that the defendant (1) did not obtain the heroin for or inject the heroin into the victim, (2) did not place the victim in a place that made it less likely that she would obtain medical assistance, and (3) did not otherwise directly cause or contribute to her death.  Further, the court noted that the defendant did not owe a legally imposed duty to provide care for the victim.  Accordingly, the court reversed the conviction.  (JTR/LC)

Opinion and hearsay issue results in new trial

In People v. Heil (4th Dept., 2/11/2010), the Fourth Department unanimously reversed the defendant's conviction on the basis that inadmissible hearsay was errantly admitted at trial, thus prejudicing the defendant.  The defendant allegedly abused a third-grade student at the elementary school where he was employed as a teacher.  After a jury trial, the defendant was convicted of two counts of Sexual Abuse 1º and Endangering the Welfare of a Child.  

At issue was the defendant's argument that a portion of his colleague's testimony was improperly admitted as opinion testimony and hearsay.  While the court held that the witness's observations were admissible—she noted the lights in the classroom were out and the student-victim was sitting on the defendant-teacher's lap—it agreed with the defendant that the witness's testimony regarding her feelings about her observations constituted inadmissible hearsay.  The court reasoned that "[t]he testimony of the teacher with respect to how she felt after leaving defendant's classroom was not relevant, but it may have led the jury to find that, if such a distinguished teacher believed that something was amiss between defendant and the victim, then it was more likely than not the abuse actually occurred."

Because "[t]he evidence against defendant [wa]s not overwhelming and . . . the teacher's testimony [wa]s highly prejudicial," the court further held that the trial court's admission of the disputed testimony was not harmless error.  Thus, the court granted a new trial.

The claim in question was unpreserved but the Appellate Division reached the issue in the interest of justice.  (JTR/LC)

AD4 splits 3-2 over De Bour issue

In People v. Riddick, federal and local law enforcement officers in a van observed defendant with two other individuals at a street corner known for "violent gang activity."  The driver of the officers' van pulled up to the defendant, rolled down his window, and told the defendant to leave the area.  The defendant then "reached for his waistband and walked away from his companions[,]" before fleeing.  The officers pursued the defendant and recovered a discarded handgun during a subsequent search of the defendant's path.  The motion court refused to suppress the recovered handgun and defendant's statements made after the pursuit.  The defendant pleaded guilty and subsequently appealed.

In its analysis, the majority considered the relevant De Bour stages of police encounters.  Regarding the initial relevant De Bour stage, the majority held "that the police had an objective credible reason to approach [the defendant] and to request information in light of the late hour, the cold weather, the absence of other . . . traffic, and the presence of the men in a high crime area."

Regarding the second relevant De Bour stage, the majority first considered that, while the defendant's flight alone was insufficient to justify pursuit, flight in combination with "other specific circumstances indicating that the suspect may be engaged in criminal activity" may give rise to the necessary reasonable suspicion for the police to give lawful pursuit.  The majority  held that the defendant's reaching for his waistband and subsequently fleeing from police did not "establish the requisite reasonable suspicion that defendant had committed or was about to commit a crime."  In so holding, the majority noted "'that actions that are 'at all times innocuous and readily susceptible of an innocent interpretation . . . may not generate a founded suspicion of criminality'" (quoting People v. Powell, 246 A.D.2d 366, 369 (1st Dept. 1998)).  Using this rule, the majority reasoned that "absent any indication of a weapon such as the visible outline of a gun or the audible click of the magazine of a weapon, does not establish the requisite reasonable suspicion[.]" 

The majority also supported its holding by concluding that "the evidence presented at the suppression hearing was insufficient to establish that defendant knew that the individuals who approached him in the unmarked vehicles were police officers."  Preliminarily, the court considered and concluded that the defendant preserved the argument of the sufficiency of evidence at the suppression hearing.  In considering the record of the suppression hearing, the majority seemed to draw an adverse inference from the absence of testimony from the driver of the officers' van, since the driver "was in the best position to testify concerning the visibility of the police markings on his clothing[.]"  Additionally, the majority discounted as "mere speculation" the testimony of a passenger in the van asserting that the defendant knew the persons in the van were police officers.

Because the majority concluded that the handgun and defendant's subsequent statements to officers should have been suppressed, the court vacated the defendant's guilty plea and ordered the indictment to be dismissed.

The dissenters disagreed with the majority in regard to the preservation issue, noting that the defendant presented a different theory to support his sufficiency argument on appeal.  In regard to the merits of the defendant's contentions, the dissent argued that "reasonable inferences to be drawn from [the officers'] testimony support the conclusion that defendant was aware that [the individuals inside the van] were police officers."  Additionally, using a totality of the circumstances analysis, the dissent argued that the defendant's reaching for his waistband before fleeing created reasonable suspicion.   (JTR/LC)

AD4 upholds enhanced sentencing based on tardiness to sentencing

In People v. McMillon (4th Dept. 2/11/10), the defendant entered a plea agreement, which was conditioned on his agreement to appear to court on time. The defendant, however, failed to satisfy this condition. He arrived to sentencing one hour and twenty minutes late. As a result, County Court enhanced his prison sentence. The defendant appealed.

The Fourth Department affirmed.  Since the defendant failed to abide by a term of his plea agreement, enhancement was proper.  The court noted that the court had included included this provision in the agreement because the defendant had arrived late for other court appearances.  (DAL/LC)

AD4 modifies criminal mischief conviction over lack of evidence on damage amount

In People v. Quigley, the defendant damaged church property.  Initially he was charged and convicted, after a bench trial, of Criminal Mischief 3º.  The Fourth Department agreed with the defendant's argument that his conviction was not supported by legally sufficient evidence. In order to prove that the defendant was guilty of the crime charged, the People needed to establish the value of the damage defendant caused to the church exceeded $250. The People only offered hearsay testimony on this element.  The Court held this was insufficient to secure a conviction of criminal mischief in the third degree. On the other hand, Criminal Mischief 4º was proved beyond a reasonable doubt since the lesser crime does require proof of the amount of damage caused.  The People presented evidence that established that the defendant was found on a ladder, against the church, on the night in question. This evidence coupled with the damaged copper gutter found next to the ladder was sufficient to establish that the defendant intentionally damaged the church property. Therefore, the Court reduced the conviction to Criminal Mischief 4º and remanded for re-sentencing.  (DAL/LC)

AD4 - New Decisions

The Fourth Department has posted new decisions.  (LC)