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Dismissed. Even though the Defendant pled guilty at the trial level, he appeals raising the defense that the accusatory instrument was facially insufficient.  The People charged defendant, in an information, with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]), to which the People alleged was in “a public place open to public view,” and that one of the officers had “recovered five ziplock bags of marihuana from the defendant’s left jacket sleeve.” On appeal, defendant contends that the accusatory instrument was facially insufficient and the Court agrees.

A ” valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” (People v Afilal, 26 NY3d 1050, 1051 [2015], quoting People v Case, 42 NY2d 98, 99 [1977]), the right to which is not forfeited by a guilty plea (see People v Dreyden, 15 NY3d 100, 103 [2010]). As the record does not reveal that defendant waived prosecution by information (see People v Dumay, 23 NY3d 518, 522 [2014]), the standards of review of the sufficiency of the accusatory instrument are those applicable to informations (see CPL 100.40 [1]; 170.65 [1], [3]; People v Jackson, 18 NY3d 738, 741 [2012]; see also People v Kalin, 12 NY3d 225, 228 [2009]). The purpose of an information is to “ensure[] that a legally sufficient case can be made against the defendant” (Dumay, 23 NY3d at 522). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offense charged and the defendant’s commission thereof (see CPL 100.15 [3]; 100.40 [1]; People v Henderson, 92 NY2d 677, 679 [1999]; People v Alejandro, 70 NY2d 133, 136-137 [1987]), although by pleading guilty, defendant forfeited any challenge to hearsay defects in the information (People v Keizer, 100 NY2d 114, 121 [2003]; People v Kwas, 52 Misc 3d 52, 53 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Even affording the instrument the required “fair and not overly restrictive or technical reading” (People v Casey, 95 NY2d 354, 360 [2000]), we find that the factual portion thereof fails to establish every element of the offense.

The Court notes that there is no definition in the Penal law for either “public place” or  “open to public view” elements. What do the Courts utilize here to make that decision? A legal conclusion will not suffice:

While the mere designation of an interior of a premises does not preclude “public place” status, since “hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence” are public places as defined in Penal Law § 240.00 (1) (see Penal Law § 221.10), there are no facts alleged to support an inference that 15-02 Mott Avenue is a public place or, if it is a premises in the nature of a dwelling containing public areas such as a hallway or lobby, that defendant was observed in a portion thereof that did not “constitute rooms or apartments designed for actual residence,” and that his possession of the marihuana in that public place was open to public view (compare People v Oquendo, 39 Misc 3d 70, 71-72 [App Term, 1st Dept 2013] [observation of the defendant “inside” an identified street address, described as “a public place” in possession of marihuana, sufficient given the factual allegations that the defendant’s conduct had “caused a crowd . . . to gather,” which sufficed to plead that the possession occurred in “a common area of the building”], with People v Sherman, 24 Misc 3d 344, 350 [Crim Ct, NY County 2009] [allegation that the defendant possessed marihuana “at a particular address” insufficient because the accusatory instrument did not otherwise “identify the nature of the location . . . for example, whether the location is a business or residence, such as an apartment house . . . [and w]hile hallways and lobbies of apartment houses are public places, there are no facts from which to infer that the possession occurred in a hallway or lobby of an apartment house”]).

Those charged with the criminal possession of marijuana should be aware that a simple conclusion by a police officer will not suffice. A description of what was a public place and what is public view must be sufficiently alleged by the People otherwise the accusatory instrument will be insufficient. Here it results in dismissal even after a plea of guilty.

The case is  People v Brown (Demitrice) 2017 NY Slip Op 50143(U) (App. Term Second Department, January 24, 2017).

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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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In the People v. Drouin, 2016 NY Slip Op 06906 (App. Div. Third Department, October 20, 2016), the Court finds that there was legally insufficient evidence to satisfy the requisite mens rea element of larceny. The two basic elements of any crime are a criminal act accompanied by a criminal mind. This case is another example of why Mens Rea matters.

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In the People v. Karagoz, 2016 NY Slip Op. 06842 (App. Div. Second Department October 19, 2016), the Second Department reviews whether evidence was properly suppressed, the inquiry focuses on whether the police were correct in approaching the defendant.

The Court reviewed the testimony from the officer – “he observed a Buick in the northbound left turning lane on Oceanside Road; the operator of the Buick appeared to be unconscious behind the wheel. The officer parked his vehicle behind the Buick. Another police vehicle arrived on the scene and parked in front of the Buick. In addition, two ambulances arrived on the scene and were facing south on Oceanside Road blocking southbound traffic. Both police vehicles and the ambulances had their lights on. Traffic could pass through on the northbound side of Oceanside Road; the left northbound turning lane and southbound traffic were blocked.” A short time after, the officer walked back to his vehicle and noticed the Defendant stopped her vehicle behind his in the turning lane. The officer approached the vehicle and asked for the basic stuff: license, registration and insurance card. Upon this inquiry, the officer noted the bloodshot eyes, slurred speech and detected the odor of an alcoholic beverage. The officer approached the Defendant based on his observation that the Defendant’s stop seemed “odd.”

The question in this case is whether the police could approach the Defendant’s vehicle on this basis – that the officer found it odd she was there: more

In People v. Rivera, 2016 NY Slip Op 07036 (Second Department, October 26, 2016), the Court deals with the issue as to whether the Defendant was improperly sentenced as a mandatory persistent violent felony offender. The Defendant went to trial and lost. He was sentenced and, as any good criminal defense attorney would do, he pled with the prosecutor for leniency; however, the defendant was never heard as to the issue of whether he should be considered a mandatory persistent violent felony offender.  The Court reiterated the following facts:

The defendant was convicted, upon a jury verdict, of criminal possession of a weapon in the second degree. Several weeks before sentence was imposed, the prosecutor submitted to the Supreme Court a sentencing letter in which he summarized, among other things, the defendant’s criminal history, including convictions of violent felony offenses in 1986 and 1995. The prosecutor asserted that the defendant was a “mandatory persistent violent felony offender,” that the minimum permissible term was 16 years to life imprisonment, and the maximum was 25 years to life imprisonment. He urged the court to impose a sentence of 20 years to life imprisonment. A week before sentence was imposed, defense counsel responded to the prosecutor’s letter. Counsel acknowledged that the minimum permissible term was 16 years to life, and he urged the court to exercise leniency. The People never submitted a formal statement pursuant to CPL 400.16. At sentencing, the court did not ask the defendant whether he had seen the prosecutor’s letter, and it did not give the defendant an opportunity to controvert any allegations about his prior violent felony convictions. Indeed, the court said nothing about the defendant’s status as a persistent violent felony offender until it actually imposed sentence. The defendant appealed his judgment of conviction to this Court, but he did not raise any claim related to his sentence (see People v Rivera, 98 AD3d 529).

In his appeal, the defendant claims that he had ineffective assistance of counsel and that he was not a persistent violent felony offender. Albeit the Defendant claimed his sentence was illegal, the Court summarily “faulted the defendant for not objecting to the procedure when he was sentenced and for not raising his sentencing claims on his direct appeal…” while it “acknowledged that the procedure by which the defendant was sentenced as a persistent violent felony offender was not in compliance with CPL 400.15 and 400.16.” more

In the People v. Aragon, 2016 NY Slip Op 07104 (Nov. 1, 2016), the New York Court of Appeals decided whether the accusatory instrument alleging that defendant unlawfully possessed “brass metal knuckles” was facially sufficient. Here, because the Defendant allowed himself to be prosecuted by an information, the Court of Appeals agrees that the information was sufficient, affirming the Appellate Term.

It is important to note, at the outset, that the Defendant waived (yes, this can be done and often times the Defendant may not realize the impact of this) prosecution by an information. Accordingly, Criminal Procedure Law § 100.15 (3) provides that the factual part of a misdemeanor complaint “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” The complaint must also “provide reasonable cause to believe that the defendant committed the offense charged” (CPL 100.40 [4] [b]; see People v Dumas, 68 NY2d 729, 731 [1986]). “[A]n accusatory instrument must be given a reasonable, not overly technical reading” (People v Konieczny, 2 NY3d 569, 576 [2004]). Thus, the test for facial sufficiency “is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (People v Dreyden, 15 NY3d 100, 103 [2010]). So what about brass knuckles?

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Miranda warnings come from the seminal Miranda v. Arizona case. We often hear these warnings on television series, such as Cops. The right to remain silent and to speak with an attorney should always be exercised. Here, “Tony Pritchette is charged in a one-count indictment with Hobbs Act robbery under 18 U.S.C. § 1951, in connection with a March 2016 air-rifle robbery of a MetroPCS store in the Bronx.” It is alleged that there were two interrogations, one where the client confessed and one where, subsequently, he was read his rights as documented by the government and gave incriminating statements. The Court delves into an interesting situation, the two-step interrogation, and suppresses the statements obtained in violation of Mr. Pritchette’s 5th Amendment Rights.

The 5th Amendment Right against Self-Incrimination has been cited often, from television series to, here, the Southern District Court of New York, United States District Court: more