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The Appellate Division Second Department overturns the Order of the Nassau County Supreme Court (J. Carter) denying the Defendant’s request to suppress evidence and statements. The arrest of the Defendant occurs in Nassau County, Woodmere after the Police receive a call in response to a silent alarm tripped at the Defendant’s parents house, where Defendant also lived. The Police approach the Defendant and asked questions. Police observed that the Defendant was unable to produce a photograph identification and was “acting shifty, very jittery.” After further conversation, Police told the Defendant that they needed to open the door and make sure everyone was okay. Unsuccessfully, the Defendant tried to prevent the police from doing so. The Police observed two hand grenades and a handgun. Is the search legitimate?

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (US Const Amend IV; see NY Const, art I, §12). “[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s very core’ stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion'” (Florida v. Jardines, _____ US_____, _____, 133 S Ct 1409, 1414, quoting Silverman v. United States, 365 US 505, 511; see United States v. Allen, 813 F3d 76, 77 [2d Cir]). ” [S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual’s home is per se unreasonable and hence unconstitutional'” (People v. Jenkins, 24 NY3d 62, 64, quoting People v. Knapp, 52 NY2d 689, 694). One of those exceptions is the “emergency doctrine” (People v. Dallas, 8 NY3d 890, 891). Under that doctrine, police officers “may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury” (Brigham City v. Stuart, 547 US 398, 403; see Michigan v. Fisher, 558 US 45, 48; People v. Mitchell, 39 NY2d 173, 177).

In the evaluation of whether a warrantless entry was justified under the “emergency doctrine,” the evidence must establish as a threshold matter that the police had “an objectively reasonable basis for believing that a person within [the house] is in need of immediate aid” (Michigan v. Fisher, 558 US at 47 [internal quotation marks omitted]; see Brigham City v. Stuart, 547 US at 403; People v. Rodriguez, 77 AD3d 280, 287). Under the Fourth Amendment, the officers’ subjective belief is irrelevant: “[a]n action is reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action'” (Brigham City v. Stuart, 547 US at 404, quoting Scott v. United States, 436 US 128, 138; see People v. Scott, 133 AD3d 794, 797; People v. Desmarat, 38 AD3d 913, 915).

The Police were incorrect in their assertions. Although the Police were correct in their assumption, that there was something wrong with the situation/the defendant, the Police cannot assert an emergency where there is none:

When the police have an objectively reasonable ground for believing that there is an emergency, a warrantless entry permitted under the emergency doctrine is not retroactively rendered impermissible because there was, in fact, no emergency (see Michigan v. Fisher, 558 US at 49). So, too, an impermissible entry is not rendered retroactively permissible when the police find evidence of criminality inside (see e.g. People v. Mormon, 100 AD3d at 782-783). Were the law otherwise, seizures themselves, regardless of the circumstances leading up to them, would be all that mattered. In that event, the Fourth Amendment would no longer protect “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (US Const Amend IV).

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The New York Law Journal reported that “A temporary inspection sticker on a motor vehicle is insufficient justification for a police search, without any other indication of illegal activity, a state appeals court has ruled.”

This case starts out, as one can imagine, when “a sheriff’s deputy stopped a vehicle in the Town of Southport, Chemung County after observing that it had a temporary inspection sticker.” The occupant, the defendant, flees and is later apprehended. Crack is recovered from the vehicle. The Defendant was charged with two drug offenses. A suppression hearing was held where the deputy discussed his practice of stopping cars with a temporary inspection sticker. The Third Department has little problem suppressing the evidence obtained as a result of the illegal stop.  The Court stated that

It is entirely proper to operate a motor vehicle with a temporary inspection sticker under certain circumstances and, as a result, the display of one does not constitute grounds for a traffic stop absent a “specific articulable basis” to believe that illegality is afoot (People v. Bowdoin, 89 AD2d 986, 987 [1982]; see Vehicle and Traffic Law §306 [b]; People v. Perez, 149 AD2d 344, 345 [1989]). The practice of stopping any vehicle with a temporary inspection sticker, without more, represents impermissible “idle curiosity” as to the sticker’s validity rather than the “reasonable suspicion” of illegality needed to effect a traffic stop (People v. Ingle, 36 NY2d 413, 420 [1975]; see People v. Sobotker, 43 NY2d 559, 563-564 [1978]; People v. Simone, 39 NY2d 818, 819 [1976]). Thus, we reverse “County Court’s order [denying] defendant’s motion to suppress all evidence obtained as a result of [the illegal traffic stop] and, pursuant to CPL 470.55 (2), vacate defendant’s guilty plea and restore the action to its prepleading status” (People v. Samuels, 270 AD2d 779, 781 [2000]).

The Court noted that “The deputy candidly admitted that he had no idea whether the sticker was valid when he made the stop, nor did he indicate that the temporary sticker gave him any other reason for suspicion…He instead stated that his ‘general practice’ was to stop any vehicle he encountered with a temporary inspection sticker in order to ‘ensure [that the sticker had] not expired. ”

Traffic Stop Evidence Suppressed – Officer did not have the specific articulable basis to believe that illegality is afoot. The Case is People v. Driscoll, 107588, NYLJ 1202776119375, at *1 (App. Div., 3rd, Decided December 29, 2016).

Need a criminal defense attorney? Call the Law Offices of Cory H. Morris for your New York Criminal Defense needs – 631-450-2515.

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Defendant appeals from a judgment convicting him, upon a jury verdict, of sexual abuse in the first degree (Penal Law §130.65 [3]). New York Criminal defendants know enough to know when a juror should be removed because that juror cannot be fair in some cases. This, albeit the juror was placed on the juror over an objection for cause, situation is one of those situations that do not pass the smell test or, as one trial advocacy professor/judge would say, the straight-face test.

The prospective juror’s son was married to the daughter of the District Attorney of Ontario County, R. Michael Tantillo, and who had a grandchild in common with the District Attorney. She says she can impartial in this sexual abuse case. It appears that the statement was unequivocal and the potential juror was seated for the trial. Obviously, there was a conviction. Problem here? The Fourth Department says yes.

The Court finds that

following the denial of the challenge for cause, defendant exercised a peremptory challenge against the prospective juror and later exhausted his peremptory challenges before the completion of jury selection (see CPL 270.20 [2]; People v. Lynch, 95 NY2d 243, 248)…the prospective juror should have been excused from service for cause on the ground that he bears a “relationship to [the District Attorney] of such nature that it [was] likely to preclude him from rendering an impartial verdict” (CPL 270.20 [1] [c]; see People v. Branch, 46 NY2d 645, 651-652; People v. Bedard, 132 AD3d 1070, 1071; People v. Clark, 125 AD2d 868, 869-870, lv denied 69 NY2d 878).

The case is People v. Collins, KA 14-02296, NYLJ 1202775609150, at *1 (App. Div., 4th, Decided December 23, 2016)

In this New York City criminal case, the Defendant was charged by Superseding Information with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, in violation of VTL §511(2)(a)(ii), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of VTL 511(1)(a), and Unlicensed Driving, in violation of VTL 509(1). The accusatory instrument stated that “on March 25, 2015, the defendant was observed operating a motor vehicle in New York County. Her privilege of operating a motor vehicle had been revoked for a driving while intoxicated conviction and for a refusal to submit to a chemical test, and had not be reinstated.”

The Defendant challenges the accusatory instrument as insufficient and, therefore, the People could not have answered ready. Often times, prosecutors (even if called something else) will file an accusatory instrument based on hearsay declarations. Also, for one reason or another, a Defendant (via counsel) will waive his or her right to be prosecuted by a legally sufficient accusatory instrument. The Court states the nonhearsay requirement for a misdemeanor complaint to be converted to an information:

In order for a misdemeanor complaint to be converted to an information the factual portion of the instrument and any supporting depositions must contain “[n]on-hearsay allegations” that establish, “if true, every element of the crime charged and defendant’s commission thereof.” CPL §100.40(1)(c); People v. Alejandro, 70 NY2d 133, 135 (1987). However, the requirement that there be non-hearsay allegations in support of every element can be met where the allegation, even if not based on the declarant’s first-hand knowledge, would be admissible under “some hearsay rule exception.” People v. Casey, 95 NY2d 354, 361 (2000).

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