You have the constitutional right against self-incrimination. Anyone who has ever heard of a television show probably has heard the television version of the Miranda Rights: You have the right to remain silent; you have the right to an attorney; things you say can be used against you; you can waive those rights; etc. Even with these rights, defendants talk. You can waive that right under certain circumstances. People who feel they have nothing to hide and did nothing wrong speak to the police. Bad idea:

Should you be confronted by the Police you have the right to remain silent (you must communicate that you are exercising that right) and the right to an attorney. In New York you have the indelible right to counsel and the privilege against self-incrimination.  Should you find yourself being questioned by the police, demand an attorney: Call the Law Offices of Cory H. Morris. Here, in People v. Clerevin, the Appellate Division of the Second Department found that the defendant’s Miranda rights were violated. The Defendant asserted he did not knowingly and voluntarily waive his Miranda rights because of mental deficiency.

Although more than fifty years old now, Miranda is still good law:

“[F]or a statement to be admissible, the People must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination” (People v Aveni, 100 AD3d 228, 236 [citations omitted]; see People v Rodney, 85 NY2d 289, 292; People v Williams, 62 NY2d 285, 288). “Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation” (People v Santos, 112 AD3d 757, 758 [internal quotation marks omitted]; see People v Williams, 62 NY2d at 288), including the defendant’s “age, experience, education, background, and intelligence, and . . . whether he [or she] has the capacity to understand the warnings given him [or her], the nature of his [or her] Fifth Amendment rights, and the consequences of waiving those rights” (Fare v Michael C., 442 US 707, 725). Where a “person of subnormal intelligence” is involved, “close scrutiny must be made of the circumstances of the asserted waiver” (People v Williams, 62 NY2d at 289).

 more

Police need to justify their actions. More than just saying hello or “peeking” into the car window, New York police officers must justify a criminal inquiry or a search. Often there are allegations that New York Police might target one individual over another. Justifications for police action, and sometimes police shootings, in New York have been as tenuous as suggestions that there was something in the suspect’s waistband.

This case is no different. Police had recovered some marijuana in a field and, the next day, the Police went back to the same field to investigate. Here, the defendant was one of several men in the field. When police approached they saw the defendant “quickly grab” near his waist/waistband. This rather innocuous behavior was the justification that police gave to search the defendant in People v. Elliot, an appeal from the defendant’s conviction for possession of, inter alia, a handgun.

The New York Law Journal reported that “[t]he movements of a man ‘grabbing’ at his waistline and bending down toward the floor while in a vehicle did not create the requisite suspicion to justify his arrest by a Rochester police officer, an appeals court ruled.” Indeed, the Appellate Court Court observed that

The officers returned to that area the next day along with a police sergeant, and they observed a group of five or six men, who dispersed upon their approach. The sergeant saw defendant “quickly grab near his waistband area” and enter the front passenger seat of a nearby sport utility vehicle, where the sergeant saw defendant bend over, “as if [defendant] was putting something underneath the seat.” The sergeant left his patrol car and approached defendant with his service weapon drawn, demanding to see defendant’s hands.

One should note that this behavior was the predicate for officers to withdraw their weapons from their holsters and approach behavior completely consistent with innocence. Playing it safe or be cautious does not justify the approach with weapons drawn. The defendant asserts that his Fourth Amendment rights were violated by such a seizure and the subsequent search that ensues. The Court states that…

We agree with defendant that the arresting sergeant lacked the requisite reasonable suspicion. There is no evidence in the record that the sergeant was informed of the recovery of marihuana in the area the day before defendant’s arrest, and defendant’s actions in merely “grabbing” at his waistline and bending down to the floor of the vehicle, without more, were insufficient to provide the sergeant with the requisite suspicion that defendant committed a crime, and to justify defendant’s gunpoint detention (see Mobley, 120 AD3d at 918; People v Cady, 103 AD3d 1155, 1156; Riddick, 70 AD3d at 1422-1423; People v Guzman, 153 AD2d 320, 323). Inasmuch as the forcible detention of defendant was unlawful, the handgun and other physical evidence seized by the police, and the statements made by defendant to the police following the unlawful seizure, should have been suppressed.

This is yet another case that highlights the importance of vehemently fighting the criminal charges and hiring an experienced defense attorney. Should you need a Florida licensed Criminal Defense Attorney or Long Island Criminal Defense Attorney, call the Law Offices of Cory H. Morris.

A slew of news articles and challenges to what is a legal knife and what is an illegal knife, a Gravity Knife, have surfaced throughout New York and, more specifically, New York City. The sale of Gravity Knives and folding Knives in New York City have caused an uproar, including a recent challenge (2d Cir.) to the New York City District Attorney’s Office of criminally charging certain knife possessions. The most basic criminal procedure class teaches its students that a crime has two elements, mens rea and actus reus. One must know it is a crime before one can commit a crime. Here, the New York Court of Appeals determined that knowledge of what a gravity knife is can no longer be considered an element of that crime:

It is not disputed that defendant Elliot Parrilla possessed a folding utility knife at the time of his arrest. He asserts, however, that he was unaware that the knife’s characteristics rendered it a gravity knife and that the People were required to prove such knowledge to establish an element of the crime of which he was convicted — criminal possession of a weapon in the third degree. We reject defendant’s argument and hold, based upon the statutory language, that the mens rea prescribed by the Legislature for criminal possession of a gravity knife simply requires a defendant’s knowing possession of a knife, not knowledge that the knife meets the statutory definition of a gravity knife.

Penal Law §265.01 (1) states that a “person is guilty of criminal possession of a weapon in the fourth degree when:…[h]e or she possesses any…gravity knife.” Section 265.00 (5) defines “‘[g]ravity knife'” as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” The crime is defined as a class A misdemeanor. The law was created, in part, to address individuals walking the streets of New York carrying foot long knives that could easily be concealed. “The Penal Law identifies gravity knives as per se weapons and criminalizes the mere possession of one” (People v. Brannon, 16 NY3d 596, 599 [2011]). In other words, section 265.01 (1) “criminalizes the mere possession, and not use, of a gravity knife” (id. at 602). Over the years, the development of knives and knife weapons has changed.

The Court concludes, however, that

Penal Law §265.01 (1) does not require the People to prove that defendants knew that the knife in their possession met the statutory definition of a gravity knife. The plain language of that subdivision demonstrates that the Legislature intended to impose strict liability to the extent that defendants need only be aware of their physical possession of the knife (see Penal Law §§15.00 [2]; 15.10). While knowing possession of the knife is required (see Penal Law §15.15 [2]), we conclude it is not necessary that defendants know that the knife meets the technical definition of a gravity knife under Penal Law §265.00 (5).

Buyer beware: the possession of a gravity knife is a crime in New York, a misdemeanor. There may be a constitutional violation if such knife was not , however, a Gravity Knife and yet one were to be incarcerated and/or criminally charged with possession of a gravity knife. Should you need assistance with such matters, call the Law Offices of Cory H. Morris.

The case is People v. Parrilla, No. 99, NYLJ 1202756639632, at *1 (Ct. of App., Decided May 3, 2016), http://www.newyorklawjournal.com/id=1202756639632/People-v-Elliot-Parrilla-No-99#ixzz4BSGEjWn9

0 comments

The importance of this case for New York criminal defendants (and, for that matter, New York criminal defense attorneys) is quite profound. The way the case unfolds for this defendant is that she abandoned “240 glassine envelopes purportedly containing heroin” by leaving her handbag in the car. Had she simply held onto her handbag the police may not have been able to search the same and find this heroin. The heroin was seized as part of an inventory search, an exception to the requirement that a warrant be issued or there be probable cause for the search. However, “in the absence of any evidence that such inventory was conducted in accordance with established procedures, suppression was mandated.” Pp.1 (citing People v. Gomez, 13 NY 3d 6). The issue becomes whether the defendant had standing to challenge the search.

Here, as is often the case, the police approached a vehicle and saw the defendant exit the car. A witness noticed two glassine bags of heroine at this point by the floor of the rear passenger compartment. After this observation, the witness saw the defendant exit the car. The Court observed that

By exiting the vehicle and leaving the handbag behind, the defendant abandoned it, for purposes of determining whether the search thereof was permissible. A warrantless search of abandoned property does not constitute an unreasonable search and does not violate the Fourth Amendment (U.S. v. Hoey, 983 F. 2d 890, 892, citing Abel v. U.S. 362 U.S. 217, 241). In New York, where an individual abandons property, there is no search or seizure (People v. Hogya, 80 AD 2d 621 (2d Dept.), app. dism. 56 N.Y. 2d 602). One’s intent to abandon may be inferred from words, acts, other objective facts, or relevant circumstances (U.S. v. Hoey, supra, at 892, citing U.S. v. Colbert, 474 F. 2d 174, 176). The issue is not abandonment in a property right sense, but whether the individual has relinquished any reasonable expectation of privacy by leaving it (Id.)

 more