New York Criminal Law and Procedure

Breaking news: AD2 disagrees with AD1 on Chief Judge's authority to transfer cases to merged/IDV courts

In People v. Fernandez (2d Dept. 3/9/2010) (Leventhal, P.J.), the Second Department held that the Integrated Domestic Violence (IDV) part of Supreme Court had jurisdiction to hear the defendant's misdemeanor case.  The court upheld the Chief Judge and Chief Administrator's authority to transfer cases to the IDV Part.  In so holding, the court parted ways with the First Department's recent decision in People v. Correa (1st Dept. 2/23/2010), which in effect declared the Bronx Criminal Division unconstitutional.

First, the court noted that Supreme Court shares concurrent jurisdiction over misdemeanors with local criminal courts.  Supreme Court also has the authority to divest local criminal courts of jurisdiction over misdemeanors.  The administrative transfer of cases from local criminal courts to superior courts is in turn authorized by the New York Constitution, which provides for the Chief Judge to establish "standards and administrative policies for general application throughout the state."  The Legislature has also vested the Chief Judge with the power to transfer cases.  The court rejected the defendant's argument that CPL § 210.05 compels a different result.  That procedural statute deals with the prosecutor's ability to invoke the jurisdiction of the superior court.  It does not affect the superior court's inherent jurisdiction and authority.

In addressing Correa, the court held,

We note that the establishment of the IDV Parts, unlike the establishment of the BCD, does not involve any purported "collapse" or "eviscerat[ion]" (id. at *2) of any other constitutionally created court. However, insofar as the First Department's holding in People v Correa can be read to support the proposition that the Chief Judge and Chief Administrative Judge are without authority to create the IDV Part, wherein the Supreme Court exercises jurisdiction over non-indicted misdemeanors, we respectfully disagree.

(LC).

AD2 denies People's appeal from defendant's successful motion to suppress

In People v. Cadle (2d Dept. 3/2/2010), the People appealed from an order from Kings County Supreme Court. On March 30, 2009, that court uphold the defendant's motion to suppress physical evidence arresting officers obtained during his arrest. 

 On the date of arrest, plain clothes officers observed the defendant holding his waistband in a "high-crime" area. The officers stated that the defendant appeared to be alarmed, as if he was "afraid of something."  After viewing the officers, who were in an unmarked car, the defendant ran away. The officers pursued the defendant. During this pursuit, he discarded a gun.

The court held that the officers' pursuit of the defendant was illegal, and the defendant's actions—including discarding the gun—were directly related to this unlawful conduct.  The court did not have reasonable suspicion that the defendant was carrying a gun.  Merely touching one's waistband and acting nervous are not sufficient to justify a pursuit and stop.  The physical evidence was therefore properly suppressed.   (LC)

Hearing required on voluntariness of guilty plea since plea linked to defendant's furlough request

In People v. Brown (Ct. App. 2/18/2010) (Lippman, C.J.), the defendant was charged with Robbery 3º and Grand Larceny 4º. From the onset, the defendant maintained his innocence.  Nevertheless, on June 29, 2005, the defendant entered a guilty plea. On appeal, he argued argued that he was coerced into entering a plea of guilty.  The Court of Appeals agreed and reversed the conviction.

From the time of arrest, the defendant remained under custody because he was unable to make bail. Shortly after his indictment, he learned that his son was critically injured by gunshot wounds he sustained and that his son had fallen into a coma. "At the outset of the next court appearance, the court informed defendant that a proposed plea bargain would require him to plead guilty to both counts of the indictment in exchange for a 2 to 4 year sentence, and then stated, '[y]our attorney told me [that] you were interested in taking the plea if I were to give you a furlough for three weeks to allow you to see your sick child,' who was still in the hospital. Defendant responded in the affirmative, and the court agreed to the furlough, warning defendant that if he did not appear on the scheduled date, he would receive an increased sentence."

Defendant surrendered on the scheduled date and later moved to withdraw his plea. He argued that his plea was made under duress and as a result of emotional and mental distress caused by his perception of his son's impending death. Furthermore, the defendant indicated in his motion that, prior to entering his guilty plea, jail officials denied his request to visit his ailing son. This request was denied based on the mistaken belief that his son's condition was not serious. It was only after the defendant pleaded guilty that officials allowed him to visit his son.

The Court of Appeals indicated that when the legitimacy of the voluntariness of a plea is questionable, an evidentiary hearing is required. Here, based on the fact that nothing in the record indicated that the defendant had sufficient time to consider the plea or alternatives, no discussion of the impact of the furlough on the defendant's plea occurred, and no indication of the voluntariness of defendant's decision to enter a guilty plea was present, the court found that a hearing was required. The court made  clear that admitting guilt to a charged crime is not dispositive, since it does not speak to the voluntariness or involuntariness of the allocution. A plea bargain granting a furlough,moreover, is not per se invalid. If the totality of the circumstances reveals that the plea is voluntary and knowingly and intelligently made, then it will be upheld. When a defendant fails to raise a legitimate question as to the voluntariness of the plea, a court may deny the motion without a hearing. When, as here, a defendant raises a genuine issue of material fact with respect to the voluntariness of the plea, a hearing is mandatory.  Accordingly, the case was remitted for a hearing.  (DAL/LC)

Bronx Merger ruled unconstitutional: The aftermath

Today, in People v. Correa (1st Dept. 2/23/2010), the First Department held that the Bronx Criminal Division (BCD) --- the experimental merger of Supreme Court and Criminal Court in Bronx County --- is unconstitutional.  More on the case later, but here are some preliminary thoughts on the "aftermath" of the decision.

So is that it, the merger is unconstitutional?

• We probably have not seen the last of this issue.
• Due to the magnitude of the issue involved, leave to appeal will likely be granted.  Once the case goes up to the Court of Appeals, I would imagine that Chief Judge Lippman, as one of the promulgators of the BCD enabling rules, will recuse himself. 

Doesn't this mean that tens of thousands of convictions will be overturned?

• The short answer: no.  The sky is not falling in Bronx County.
• The decision does not affect felonies, only Class A misdemeanors.
• Most misdemeanor defendants pleaded guilty and were likely satisfied with the plea agreements they reached with the People.  They received sentences like a conditional charge, time served, or a fine.  They will not be banging down the courthouse door trying to get a new trial.
• Of those defendants who do wish to use the decision as a way to overturn their convictions, most will have to overcome the problem of retroactivity.  While new decisions apply to cases in the direct appeal pipeline, most cases have been "final" for quite some time because defendants did not file  notices of appeal.  Thus, their only avenue is a 440 motion.  It is unclear whether Correa, if it is not overturned, will apply to cases on collateral review.

How does this affect cases calendared for tomorrow?

• It will not have much practical effect.
• Most of the judges in Bronx County are Criminal Court judges who are Acting JSCs. 
• The "up front" calendar parts are, to my knowledge, staffed only by Acting JSCs.  They can continue to hear both felony and misdemeanor cases.  When hearing felonies, they are wearing their AJSC hats.  When hearing misdemeanors, they are JCCs.
• The District Attorney's Office has hopefully captioned new accusatory instruments to say, "New York City Criminal Court" instead of "Bronx Supreme Court, Criminal Division."  Arraignments will continue to occur in the Criminal Court Arraignment Part.
• Trials of misdemeanors before JSCs who are not also JCCs should probably be adjourned until there is word on whether Correa will be stayed pending appeal to the Court of Appeals.

So what are the open questions?

• If the BCD is unconstitutional, the cases currently pending before it are a nullity.  Accusatory instruments will need to be refiled in the Criminal Court, unless one could argue that they were originally filed in Criminal Court and, since the order purporting to transfer them to the BCD was invalid, therefore they have "remained" in Criminal Court ever since.  If that is the case, nothing new has to happen except to amend the caption of each accusatory instrument.
• If accusatory instruments have to be refiled, what is the effect on 30.10 (limitations period) and 30.30 (prosecutorial readiness)?  Can they relate back to the original filing date if the court was unconstitutional?  (LC)

COA & AD1 - New Decisions

The Court of Appeals has announced new decisions:

• People v. Williams (Ct. App. 2/23/2010) (Graffeo, J.) - double jeopardy issues in PRS resentencing
• People v. McDade (Ct. App. 2/23/2010) (SSM) - evidence legally sufficient for Rape

In addition, the First Department has posted new decisions, including People v. Correa, which declared the merger of Bronx Supreme Court and the New York City Criminal Court in that county to be unconstitutional.

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 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)

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)

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)

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)

Prior version of NYC Parade Permit Law held unconstitutional

This week, the First Appellate Term declared the pre-2007 version of New York City's Parade Permit Law to be unconstitutional.  The case is People v. Beck (1st App. Term 1/4/2010).

Various Critical Mass bicyclists were arrested on February 25, 2005, and charged with Disorderly Conduct and Parading Without a Permit.  The court upheld the defendants' convictions for Disorderly Conduct (Penal Law § 240.20[5] [obstruction of vehicular or pedestrian traffic]).

Parading Without a Permit is a violation of the Administrative Code, which requires police permits for "processions" and "parades."  These terms are defined in the Rules of the City of New York.  At the time, the RCNY defined a "parade or procession" as "any march, motorcade, caravan, promenade, foot or bicycle race, or similar event of any kind, upon any public street or roadway."

Since the applied to any group of people, no matter the size, the statute was overbroad.  While the city has a legitimate interest in crowd control and public safety, the statute "burden[ed] substantially more speech and expressive conduct than [was] necessary to further" these interests.  The court went on to hold:

That the City, in practice, may not have required permits for "parades" and "processions" involving small groups is immaterial; a court cannot presume that the official responsible for issuing permits will act in good faith and adhere to standards absent from the face of the permit law. Relatedly, the permit law under which defendants were convicted afforded the City, acting through the police commissioner, unduly broad discretion in determining whether a particular event required a permit.

In 2007, the statute was amended to require permits only for groups larger than 50 persons or riders.  (LC).

New decision on conflicts of interest

When People v. Konstantinides (Ct. App. 12/17/2009) (Read, J.) (4-3) went to trial, the defendant had two attorneys, Attorney #1 and Attorney #2.  Attorney #1 was lead counsel and had represented the defendant for many months before Attorney #2 joined the defense team as second seat.  During the trial, the People announced that they had been contacted by a witness' wife, L.T., who alleged that Attorney #2 had placed three-way calls with the defendant to her and made numerous threats, trying to suborn perjury of her and her husband.  The People moved to disqualify Attorney #2.  There was no ruling from the trial court on the motion.  At issue on appeal was whether the unresolved allegations of criminal and unethical conduct against Attorney #2 were, by themselves, enough to violate the defendant's right to conflict-free counsel.  A divided court held that the defendant's right was not violated.

The majority found no violation for several reasons:

• The defendant was fully informed of the conflict because of the in-court exchange between the prosecutor, trial court, and defense counsel.  Neither the defendant nor Attorney #1 complained about Attorney #2's continued participation in the case.
• The defendant was represented by Attorney #1, who was lead counsel and conflict-free.
• Although Attorney #2 presented the defense case (including the direct examination of the defendant), the defendant could not point to any improper questions that were harmful to him or any evidence that should have been presented but was not.  The court rejected, as pure speculation, that Attorney #2 should have called a woman named Jennifer, who would have testified that she had an affair with the victim, the victim used drugs on the day of the crime, and the gun in question (the defendant was charged with CPW, among other crimes) belonged to the victim.  Jennifer was not on the defense witness list at the beginning of trial and she was not mentioned during the defense opening statement.  There was no evidence, in other words, that the mid-trial allegation of subornation of perjury against Attorney #2 was what prompted him not to call Jennifer.
• While it would have been a better practice for the trial judge to have made a more thorough, on-the-record inquiry and made a record of follow-up conversations about the allegations, this did not require reversal since the defendant had the burden of demonstrating a conflict of interest.
• There was no showing of prejudice.  The defendant was acquitted of some charges, the jury hung on others, and there was overwhelming evidence of the crimes the defendant was found guilty of (CPW).
• The court rejected a per se rule requiring reversal in cases where attorneys are accused of criminal wrongdoing relating to the representation of the accused.

Three dissenters, in an opinion by Judge Smith, rejected the majority's arguments.  Judge Smith's opinion focused on the absence of record evidence to support the majority's argument that the conflict of interest did not impact the defense.  This silence in the record should be held against the People, not the defendant, since the defendant and Attorney #1 could not have been expected to fight against Attorney #2.  (LC)

Transportation to police station amounts to de facto arrest

In People v. Gayden (4th Dept. 11/13/2009), the police suspected the defendant of participating in a burglary.  He was first interviewed at a hospital, where he was being treated for a gunshot wound.  He claimed that he was the victim of a robbery.  A few weeks later, the police went to his residence and asked him to take them to the scene of the alleged robbery. The defendant agreed to do so and there was no dispute on appeal that this was consensual.  Once at the purported crime scene, the "officers then transported defendant to the police station," where the defendant gave incriminating statements. 

The Fourth Department concluded that the transportation of the defendant to the police station amounted to a de facto arrest.  "[T]he People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station."  (LC)

Reversal for ineffective assistance of counsel

In People v. Clarke (2d Dept. 10/6/2009), the Second Department reversed the defendant's conviction,  because he received ineffective assistance of counsel.  The defendant was convicted of Attempted Murder 2º and CPW 2º.  The conviction stemmed from an incident in which the defendant allegedly shot a friend of his former girlfriend. 

The Second Department found that the defendant's trial attorney committed a multitude of errors:

• The complainant gave conflicting descriptions of the shooter.  Counsel's cross-examination was "meager" on this point.
• There was conflicting information about where the complainant went in the moments leading up to the shooting.  A police report indicated he went to an ATM before going home.  On the stand, the complainant testified he went directly to his residence.  Counsel did not pursue this point.
• The attorney failed to object to the admission of inadmissible evidence or to at least seek redaction of the unduly prejudicial material in the evidence.
• During the five-day trial, defense counsel made only five objections.

In summary, the court concluded, "In conclusion, we do not find that any single example of deficient representation was sufficient to deprive the defendant of the effective representation of counsel ... . Rather, we conclude that, given the totality of his counsel's deficient representation, the cumulative effect of these errors deprived the defendant of a meaningful representation and a fair trial ... . This is especially so where, as here, the determination of guilt in this one-witness identification case hinged on sharp issues of credibility ... ." (LC)

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)

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)

COA - Summaries of New Decisions

The Court of Appeals announced new decisions today:

• People v. Buchanan (Ct. App. 6/30/2009) (per curiam; Read, J., dissenting) - the state constitution prohibits a court from ordering a defendant to wear a stun belt during his trial, even if he is charged with murder and the belt is not visible to the jury, "without a finding of specific facts justifying the use of such a restraint."  What is interesting about this case is that the court ducked the question of prejudice (which was the subject of Judge Read's dissent) and never articulated why state law should go above and beyond the federal constitution.  The court did not employ the analysis required by People v. P.J. Video, 68 N.Y.2d 296 (1986).  On the merits, I agree that some particularized showing of need is required by due process.  There must be intangible prejudices that are inherent with the wearing of a stun belt.  Even an innocent person would worry and preoccupy about it going off accidentally, even though I am not aware of a single instance of this happening.  This worry and preoccupation must be visible to the jury or impede the attorney-client relationship.  I am also surprised that the court's opinion was so short and bereft of analysis, given the magnitude of the issue and the fact that the holding drew a dissent. 
• People v. Gomez (Ct. App. 6/30/2009) (Jones, J.) - evidence not admissible under the inventory search exception.  Although the officer prepared a "voucher" of the evidence seized, he did not prepare an inventory form or explain what other items were in the vehicle.  Moreover, there was no evidence that the officer acted in accordance with the protocol, particularly when it came to the opening of the car's trunk.  The court emphasized that the People need not introduce the Patrol Guide in every case; however, I have repeatedly emphasized---and continue to emphasize---that doing so is good practice.  Moreover, an inventory form---labelled as such---is not always required.  "[T]he failure to use an inventory search form, while a technical defect, is not fatal to the establishment of a valid inventory search as long as (1) the search, in accordance with the "standardized procedure," is designed to produce an inventory and (2) the search results are fully recorded in a usable format."  

(LC)

AD1 finds trial court violated defendant's right to present defense to probation violation

Today the First Department unanimously reversed the defendant's resentencing in People v. Padworski (1st Dept. 6/23/2009) because the trial court (Berkman, J.) did not give the defendant an adequate opportunity to be heard on whether he violated the terms of his probation.  As the court explained:

The proceedings of August 16 and September 13, 2006 did not provide defendant with a meaningful opportunity to dispute the alleged violation of probation based on his August 2004 conviction. While CPL 410.70(3) provides for a summary hearing, it does not permit a summary denial of any hearing. Rather than asking defendant whether he wished to make any statement with respect to the violation (see CPL 410.70 [2]), the court refused to permit him to complete the statement he was clearly seeking to make. Defendant cannot be faulted for failing to explain why he was not in violation of his probation, since the court prevented him from doing so.

(LC).

Confrontation Clause Issue Draws Dissent at AD1

In People v. Parker (1st Dept. 6/18/2009), the defendant was charged with Robbery 3˙.  The defendant allegedly stole a medallion from the complainant.  The defense at trial was that it was the complainant who had robbed the defendant and that the medallion in fact belonged to the defendant.  At trial, a police officer testified as to statements made by the defendant's wife, who, at the hospital, became irate at her husband and stated that the medallion was not the defendant's.  At trial, the testimony was admitted for the nonhearsay purpose of explaining why the officer detained the defendant instead of the complainant.

The majority concluded that the defendant's Confrontation Clause claim was not preserved because the defendant made only general objections and his mistrial motion --- made after summations --- was too late to be effective.  Moreover, the majority found the testimony admissible and, in any event, harmless error.

Justice Freedman, in dissent, contended that the claim was preserved.  She also found, "Even were there some basis for admitting the hearsay during the trial, ostensibly to complete a narrative, there was absolutely no basis for allowing the prosecution to continue using it during summation for the clear purpose of substantiating the contention that the medallion did not belong to defendant; ownership of the medallion was the key issue at the trial."  Citing People v. Woods, Justice Freedman would not have applied the harmless error doctrine since the testimony went to a key issue and the prosecutor emphasized the testimony in summation.  (LC)

New COA Cases Today

Today's Court of Appeals cases include:

• People v. Davis (Ct. App. 6/11/2009) (Ciparick, J.; Jones, J., dissenting) - upholding trials of Class B misdemeanors before JHOs, upon consent of the parties.  Judge Jones dissented, finding that there was inadequate evidence of the defendant's waiver of his right to trial before a Criminal Court judge.
• People v. Marte (Ct. App. 6/11/2009) (Smith, J.) - Adams rule regarding suggestive police identification procedures does not apply to identification procedures conducted by civilians.  (In this case, the victim's sister showed him a picture of the defendant.)
• People v. Bailey (Ct. App. 6/11/2009) (Jones, J.; Pigott, J., dissenting) - evidence was legally insufficient that the defendant had the requisite intent to defraud, deceive, or injure another, even though he acknowledged knowing that he was in possession of counterfeit currency.  "Simply put, drawing the inference of defendant's intent from his knowledge that the bills were counterfeit improperly shifts the burden to prove intent from the People to the defendant. Stated another way, by ruling that the evidence was sufficient to sustain defendant's conviction of possession of a forged instrument, the lower courts have effectively stripped the element of intent from the statute and criminalized knowing possession."
• People v. Cano (Ct. App. 6/11/2009) (SSM) - evidence was legally sufficient to convict the defendant of attempt since he came "dangerously near" the commission of the completed crime by arriving at the location where he thought he would have a sexual rendezvous with an underage boy.

(LC)

COA - New Decisions

The Court of Appeals announced new decisions today in the criminal justice area:

• People v. Decker (Ct. App. 6/9/2009) (Lippman, C.J.) - 15 year delay in bringing prosecution for murder did not deprive defendant of due process.  The People had good reasons for waiting to bring charges: witnesses were intimidated, the People wanted to conduct further investigation, and there was a lack of physical evidence.  Finally, the defendant was not "significantly impaired by the delay."  Applying the Taranovich factors, a unanimous court concluded that the defendant was not deprived of his right to prompt prosecution.
• People v. Mingo (Ct. App. 6/9/2009) (Graffeo, J.) (N.B. at present, the online version of the opinion has significant formatting errors and does not load correction) - what constitutes "reliable hearsay" for purposes of determining a defendant's SORA risk level.  A unanimous court adopted the following test: "We conclude that hearsay is reliable for SORA purposes — and, therefore, admissible — if, based on the circumstances surrounding the development of the proof, a reasonable person would deem it trustworthy."

(LC)

AD3 - New Decisions

The Third Department has posted new decisions, including:

• People v. Rose (3d Dept. 6/4/2009) - conviction for Falsifying Business Records 1˙ reversed because the trial judge erroneously charged elements for 3˙ offense.
• People v. Miller (3d Dept. 6/4/2009) - conviction for Burglary 2˙ reversed because of ineffective assistance of trial counsel.  Defendant's trial attorney committed a number of missteps and failed to pursue a number of potentially favorable avenues.
• People v. Pelkey (3d Dept. 6/4/2009) - restitution amount was contrary to law.  County Court improperly relied on a report by the Probation Department to calculate the amount when, in fact, a hearing was required.  The court also erred in imposing extradition costs as part of restitution.  "Extradition costs are normal operating costs of the law enforcement agency — which is not considered a "victim" of defendant's crime — and, therefore, are not ordinarily part of restitution."  While a defendant can agree to reimburse law enforcement for extradition costs, no such agreement was part of the defendant's plea bargain.

(LC)

AD3 Rejects Second Amendment Challenge to Penal Law Article 265

In People v. Perkins (3d Dept. 5/21/2009) (Stein, J.), a case out of Schenectady, the defendant got into an argument with another person outside of that individual's home.  The defendant drew a gun and fired two shots in the person's direction.  The Third Department unanimously rejected the defendant's challenge to Penal Law Article 265 on Second Amendment grounds:

We reject defendant's contention that the statutes under which he was convicted violate the Second Amendment of the US Constitution and Civil Rights Law § 4. Defendant's reliance on District of Columbia v Heller (___ US ___, 128 S Ct 2783 [2008]) is misplaced. While the United States Supreme Court concluded in that case that the Second Amendment confers a constitutionally protected individual right to keep and bear arms as a means of self-defense within the home, it also held that the right conferred by the Second Amendment — and, by extension, Civil Rights Law § 4 (see Chwick v Mulvey, 2008 NY Slip Op 22486[U], *19 [2008]) — is not absolute and may be limited by reasonable governmental restrictions (see District of Columbia v Heller, 128 S Ct at 2816).

Unlike the statute at issue in Heller, Penal Law article 265 does not effect a complete ban on handguns and is, therefore, not a "severe restriction" improperly infringing upon defendant's Second Amendment rights. Moreover, in our view, New York's licensing requirement remains an acceptable means of regulating the possession of firearms (see People v Morrill, 101 AD2d 927, 927 [1984]; People v Ferguson, 21 Misc 3d 1120[A], 2008 NY Slip Op 52112[U], *4 [NY City Crim Ct 2008]) and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner (see District of Columbia v Heller, 128 S Ct at 2819).

Here, defendant was not in his home at the time of the crime and did not have a valid pistol permit. Inasmuch as the relevant sections of the Penal Law are constitutionally sound and defendant's conduct did not conform to that which is protected by the Second Amendment and Civil Rights Law § 4, defendant's constitutional challenge lacks merit.

(LC)

Warrantless GPS Tracking of Car Requires Warrant

Today, in People v. Weaver (Ct. App. 5/12/2009), the Court of Appeals held that the warrantless surveillance of a car through a global positioning system (GPS) tracking device is unconstitutional.  The court's decision was expressly on state constitutional grounds.  The court split 4-3, with Chief Judge Lippman writing for the majority and Judges Smith and Read writing dissents.

The factual record in Weaver was, unfortunately, not fully developed.  The court notes that it was "not clear from the record why defendant was placed under electronic surveillance."  In any event, the State Police placed a GPS tracking device -- known as a "Q-Ball" -- on the defendant's van and monitored his position for 65 days.  The defendant was later tried for burglary charges.  The GPS evidence was admitted to show that his vehicle was present at one of the crime scenes.

The majority's decision was based largely on the intrusive nature of GPS tracking technology.  The majority thus distinguished United States v. Knotts, in which a rudimentary tracking device was briefly attached to a chemical drum and the police monitored the drum's movements in real-time.

Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or "seeing" by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.

... One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations —political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations.

Notably, in Weaver there was no real-time tracking.  Instead, the police planted the device on the car and then left.  They would occasionally download the information from the device by driving past the car and pressing a button on a receiver.  The information was wirelessly transmitted from the Q-Ball to the receiver.

Judge Smith challenged the majority's attempt to draw a line between "acceptable means of observation and more efficient, high-tech ones."  He noted that the police could have assigned a team of officers to track his movements to all of the private places mentioned in the majority's opinion.  The "newness" of GPS technology was, for Judge Smith, not a particular reason to find that the defendant had an expectation of privacy that was unjustifiably intruded upon:

The majority's answer is that the GPS is new, and vastly more efficient than the investigative tools that preceded it. This is certainly true — but the same was true of the portable camera and the telephone in 1880, the automobile in 1910 and the video camera in 1950. Indeed, the majority distinguishes Knotts on the ground that it involved a beeper — "what we must now ... recognize to have been a very primitive tracking device" (majority op at 8). I suspect that the GPS used in this case will seem primitive a quarter of a century from now. Will that mean that police will then be allowed to use it without a warrant?

The proposition that some devices are too modern and sophisticated to be used freely in police investigation is not a defensible rule of constitutional law. As technology improves, investigation becomes more efficient — and, as long as the investigation does not invade anyone's privacy, that may be a good thing. It bears remembering that criminals can, and will, use the most modern and efficient tools available to them, and will not get warrants before doing so. To limit police use of the same tools is to guarantee that the efficiency of law enforcement will increase more slowly than the efficiency of law breakers. If the people of our State think it worthwhile to impose such limits, that should be done through legislation, not through ad hoc constitutional adjudication, for reasons well explained in Judge Read's dissent (op of Read, J at 11-14).

Judge Smith was troubled by the trespass on the defendant's property -- the surreptious placement of the device on the car without the owner's permission.  He nevertheless concluded that this did not amount to a constitutional violation.

Judge Read would have affirmed for two additional reasons.  She argued that the majority failed to justify why it was deciding that the State Constitution required reversal and, second, that the court should have deferred to the Legislature.

Weaver is going to be an important decision.  It sets forth the court's hesitance to allow new technology to gather evidence without a warrant.  It re-emphasizes that the State Constitution is not a mere parrot of its federal counterpart.  Under appropriate circumstances, the Court of Appeals is willing to extend broader protections for civil rights and liberties than the U.S. Supreme Court.  The decision also raises questions about other new technologies, such as cell phone tracking data.  While such data is usually collected pursuant to court order, there may be an open question as to whether CPL Article 705, which governs so-called "trap and trace orders," comports with the State Constitution.  (LC)