In the People v. Robinson, 32682013, NYLJ 1202753002450, at 1 (Sup., BX, Decided February 24, 2016) the defendant is charged, inter alia, with Robbery in the Second Degree, Criminal Possession of Stolen Property, and related crimes. The real crux (and importance) of this case is that the police used an iPhone tracking system to find the alleged culprits.

The Court here evaluated a motion to suppress evidence. It is alleged that the Defendant and his accomplice, Atoine Ross, stole a couple of iPhones at gunpoint. The New York City Police Department were called to respond to address these alleged robberies and interviewed the victims. Evidently aware of this new technology, the officers asked the victims whether they installed a computer application “find my iPhone.” Indeed, it was and the officers utilized the application to find the perpetrators. The Officer (Krug) use his own phone to utilize the program and the phones were tracked to 106th Street and First Avenue in Manhattan. Officer’s approached and, although a gun was not immediately in sight, two iPhones were:

“Officer Hernandez observed two iPhones and a belt on the car floor. The officers did not find a gun on either Ross or Robinson. Officer Hernandez opened the unlocked glove box by the passenger seat. There was a loaded, silver, 25-caliber handgun in that glove box. Officer Krug found $14.00 inside the car as well.” Pp. 3.

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Defendants often complain that they have to keep coming back to Court and the prosecution is never ready for trial. Witnesses, evidence and sometimes the theory of the case disappears and, over time, criminal defendants answer ready for trial over and over yet no trial ever occurs. “At issue on this appeal is whether the People’s repeated declarations of unreadiness in court rendered their prior off-calendar statements of readiness illusory.” Pp. 2. New York Speedy Trial rights attach to a criminal defendant facing a crime or violation charge. While there are exceptions, a violation of New York Speedy Trial rights may entitled a defendant to move for a dismissal on these grounds alone.

A statement of readiness certifies that the People are ready to proceed to trial and, thus, tolls the “speedy trial clock” from running. People v. Stirrup, 91 NY2d 434, 440 (1998). Such a statement, while presumptively truthful and accurate, “entails more than a mere empty assertion of readiness.” Stirrup, 91 NY2d at 440. It must be a good faith, affirmative representation on the record of present and actual readiness. See People v. Kendzia, 64 NY2d 331, 337 (1985); People v. Robinson, 171 AD2d 475, 477 (1991)). While a post-readiness declaration by the People that they are not ready does not necessarily render the prior statement of readiness illusory. People v. Brown, 126 AD3d 516, 517-518 (1st Dep’t. 2015), leave granted. The Court here found that an issue remains as to what makes a prior off-calendar statement of readiness illusory. Reviewing what happened, the Court finds that:

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Defendant is charged with one count of criminal possession of a weapon in the fourth degree (Penal Law ‘265.01 [2]). A person is guilty of criminal possession of a weapon in the fourth degree when he “possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.” (Penal Law ‘ 265.01 [2]).

The Court frames the issue: “[t]he questions presented here are whether the allegations — that an officer found a knife on the floor of defendant’s car and that defendant made a statement indicating that he possessed the knife for self-protection — establish reasonable cause to believe (1) that defendant knowingly possessed a “dangerous knife” and (2) that he possessed the knife with the intent to use it unlawfully against another. Defendant contends that the allegations are insufficient to establish reasonable cause to believe that he had the intent to use the knife unlawfully against another.” Pp. 1-2. After reiterating the legal standard for facial insufficient (see Pp. 2), the Court recites the legal standard for Reasonable Cause:

“Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” Pp. 5. See CPL 70.10 [2]). “Reasonable cause to believe that a person has committed an offense” focuses upon the issue of whether the evidence is of sufficient weight and persuasiveness to establish a reasonable likelihood a defendant committed the offense. Peter Preiser, Practice Commentary, McKinney’s Consolidated Laws of New York Annotated, CPL 70.10)…. The measure of “reasonable cause” is the equivalent of the familiar constitutional standard called “probable cause” (People v. Johnson, 66 NY2d 398, 402, n. 2 [1985]).

For either to exist, the evidence must be strong enough to support a reasonable belief that it is more probable than not that a defendant committed a crime (see People v. Mercado, 68 NY2d 874, 877 [1986]). When “evidence or information which appears reliable discloses facts or circumstances” (CPL 70.10 [b]) which favor equally guilt or innocence the reasonable cause standard is not met (People v. Carrasquillo, 54 NY2d 248, 254 [1981] [“conduct equally compatible with guilt or innocence will not suffice”]).

Although the Court finds that it is clear (by his statements and the surrounding circumstances of its recovery) that the Defendant possessed a knife, it is unclear whether the Defendant possessed the intent to actually use that knife. The defendant indicated that it was dangerous out there and that he needed the knife for self-protection. By establishing possession of a “dangerous knife”, the People are entitled to the statutory presumption that defendant intended to use the knife unlawfully against another. (Penal Law §265.15[4]). The presumption establishes reasonable cause but can be overcome by the defendant.  more

The defendant appeals from a conviction of criminal possession of a controlled substance in the third degree. The Court suppresses the physical evidence – case is sent back down to the County Court pursuant to CPL 470.45. The Court notes “that defendant correctly concedes that the vehicle was lawfully stopped for having excessively tinted windows in violation of the Vehicle and Traffic Law [and] concedes that, following the stop of the vehicle, the officer was entitled to make level one inquiries concerning defendant’s identity and destination…and to direct him to exit the vehicle when the driver admitted that he had no driver’s license and defendant was unable to produce identification.” (citations omitted). At issue here is the second level of inquiry – the officer should have stopped instead of pursuing the defendant.   more

This appeal comes from the Monroe County Supreme Court – a jury convicted the defendant of attempted rape and attempted criminal sexual act in the first and second degree. The judgement is unanimously reversed on the law and “as a matter of discretion in the interest of justice.” A new trial is granted.

“[A]lthough defendant failed to preserve his contention for our review with respect to all but one alleged instance of prosecutorial misconduct”  The court exercises its discretion in reviewing the matter and exercises its discretion (in the interests of justice) in fashioning a remedy. The Court recited what the prosecutor did that afforded the Defendant a new trial:

On summation, the prosecutor repeatedly invoked a “safe streets” argument (see People v Tolliver, 267 AD2d 1007, 1007 [1999], lv denied 94 NY2d 908 [2000]), even after Supreme Court sustained defense counsel’s objection to the prosecutor’s use of that argument; denigrated the defense by calling defense counsel’s arguments “garbage,” “smoke and mirrors,” and “nonsense” intended to distract the juror’s focus from the “atrocious acts” that defendant committed against the victim (see People v Morgan, 111 AD3d 1254, 1255 [2013]; People v Spann, 82 AD3d 1013, 1015 [2011]; People v Brown, 26 AD3d 392, 393 [2006]); improperly characterized the defense as being based on a “big conspiracy” against defendant by the prosecutor and the People’s witnesses (see People v Cowan, 111 AD2d 343, 345 [1985], lv denied 65 NY2d 978 [1985]); and denigrated the fact that defendant had elected to invoke his constitutional right to a trial (see People v Rivera, 116 AD2d 371, 373 [1986]). Perhaps most egregiously, given that “the potential danger posed to defendant when DNA evidence is presented as dispositive of guilt is by now obvious,” the prosecutor engaged in misconduct when she mischaracterized and overstated the probative value of the DNA evidence in this case (People v Wright, 25 NY3d 769, 783 [2015]).

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Defendant appealed from a conviction of criminal possession of a weapon in the second degree, criminal possession of marijuana in the third degree, aggravated unlicensed operation of a motor vehicle in the second degree, and speeding. The New York Law Journal reported that “While speaking to Campbell, Emil Garcia, a Westchester County police officer, smelled marijuana. According to court papers, Campbell told Garcia that he had smoked marijuana and that there was marijuana inside the car.” Just another case where the defendant, instead of speaking to the police, should have exercised (you have to tell the police this) his right to remain silent and  demand to speak to an attorney: do not hesitate to call the Law Offices of Cory H. Morris if you are stopped by the police, anytime..

Here, Defendant alleges that the statements between him and a co-defendant were improperly admitted into evidence above his objection. The statements were the conversation that the defendant had in the back seat of the police car, all recorded by the police camera(s). The Defendant challenged the statements (also introduced against the co-defendant).  more