Category: Appellate Division

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

Traffic Infractions and Vehicle and Traffic Law Violations bear serious consequences in New York State. This case comes by way of “[a]ppeal from eight judgments of the City Court of Rye, Westchester County…The judgments convicted defendant, after a nonjury trial, of three charges of failing to obey a traffic control device, three charges of failing to signal before turning, operating an unregistered motor vehicle, and failing to wear a seatbelt while operating a motor vehicle, respectively.” The defendant contends that the “City Court failed to provide findings of fact to support its decision as required by CPLR 4213 (b) or, in the alternative, remit the matter for a new trial.” The Court disagrees but reviews the evidence based on its discretion and the interests of justice.

So what happened here: a New York State motorist was pulled over and received eight (8) eight simplified traffic informations charging the motorist with failing to obey a traffic control device (Vehicle and Traffic Law §1110 [a]) by traveling in excess of the posted speed limit (three charges), failing to signal before turning (Vehicle and Traffic Law §1163 [d]) (three charges), operating an unregistered motor vehicle (Vehicle and Traffic Law §401 [1]), and failing to wear a seatbelt while operating a motor vehicle (Vehicle and Traffic Law §1229-c [3]). He goes to trial and the judge convicts the motorist of all of the above mentioned charges. Not a unique situation.

What is unique is the Court reviewing the case and finding that evidence was legally insufficient to establish the motorists’ guilt of all of these violations: more

Driving While Intoxicated. Everyone has seen the commercials. Sometimes the driver is in a car filled with some sort of alcohol, swerving, while a trooper turns on flashing lights and pulls him or her over to the side of the road. Driving While Intoxicated checkpoints are rife throughout Long Island and New York. This conviction comes as a result of a DWI checkpoint in Suffolk County New York. The Defendant here challenged the constitutionality of the DWI Checkpoint. Unfortunately for the Suffolk County, New York Defendant, the portion of motion suppressing evidence was denied and he was convicted. On appeal the judgment was affirmed.

On August 24, 2012, after defendant was stopped and arrested at a police checkpoint, the People charged defendant with driving while intoxicated (common law) (Vehicle and Traffic Law §1192 [3]), failing to wear a seatbelt (Vehicle and Traffic Law § 1229 [d] [3]), and failing to comply with a lawful order or direction of a police officer regulating traffic (Vehicle and Traffic Law §1102). After a hearing, the District Court (Jennifer A. Henry) denied defendant’s motion to suppress all evidence obtained as the result of the stop. Defendant subsequently pleaded guilty to driving while impaired (Vehicle and Traffic Law §1192 [1]).

The Court here is required to perform a balancing test: with individual liberty interests on one side of the scale and the governmental interest(s) on the other side of the scale. Here, the government has the compelling interest in pulling over motorists in a program that is purportedly designed to enhance traffic safety in Suffolk County, New York.

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As my New York Criminal Procedure professor emphasized to the class, the discretion of intermediate appellate court is broad and such court can modify a sentence in its discretion – a decision that will evade the review of the Court of Appeals. For criminal appellate attorneys, this is significant because the relief one can request on appeal. The case discussed below is one that fits the mold: a defendant who left the jurisdiction of the Court and, after nearly two decades, can come back and appeal a sentence as unfair.

In People v. Kordish, the Defendant was a twenty-two year old guy with a drug habit. Kordish sold drugs, 21 grams of cocaine, to an undercover officer while he was on probation for a prior conviction (same offense). The defendant absconded, failing to appear in court on the scheduled trial date. In 1992, the Defendant was convicted in a nonjury trial and sentenced to an indeterminate term of prison, eight to sixteen years. The defendant had left and went to Florida. He was arrested (in Florida) in 2009 and incarcerated until 2012, when he was returned to New York. Once returned, the Court imposed the 1992 sentence.

“An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range” (People v Delgado, 80 NY2d 780, 783; see CPL 470.15[6][b]; People v Thompson, 60 NY2d 513, 519). Our sentencing review power “may be exercised, if the interest of justice warrants, without deference to the sentencing court” (People v Delgado, 80 NY2d at 783 [emphasis added]). In considering whether a sentence is unduly harsh or severe under the circumstances, we exercise our discretion giving consideration to, “among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation, and deterrence” (People v Farrar, 52 NY2d 302, 305; see People v Suitte, 90 AD2d 80, 83-84).

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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).

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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.

This case comes by way of an appeal. The Defendant was convicted of assault in the third degree and criminal mischief in the fourth degree, upon a jury verdict. A New York Criminal Defendant has the right to be tried by a fair and impartial jury. Prospective jurors must be able to fairly look at the evidence and not incorporate their own personal biases in rendering a verdict. A criminal defendant ought to hire a good criminal defense attorney to flush out such biases which may not be so apparent:

CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence (see People v Johnson, 94 NY2d 600, 614; People v Goodwin, 64 AD3d 790, 791). A prospective juror’s responses, construed as a whole, must demonstrate an absolute belief that his or her prior opinion will not influence his or her verdict (see People v Culhane, 33 NY2d 90, 107; People v Goodwin, 64 AD3d at 792).

“Here, during voir dire, one prospective juror indicated that because her aunt had been the victim of a violent sexual assault, it would ‘be a little bit hard’ for her to keep an open mind when listening to the facts of this case.” Wait a second – this is something that needed to be flushed out through questioning and paying careful attention to the juror behavior. The Court when onto describe that “[w]hen [the prospective juror was] asked whether she could ‘give the defendant in this case a fair trial,’ she responded, ‘I can manage. Yes.’ When asked if it was possible that her judgment in this case might be affected by her aunt’s case, she responded, ‘Might.'” You can imagine that if you were the defendant in this case, you “might” not want this juror rendering a decision impacting your future:

The prospective juror confirmed that she would refrain from blaming the defendant for what happened to her aunt or favoring the prosecution for successfully prosecuting her aunt’s assailant, but when asked again by defense counsel whether her aunt’s experience “might affect [her] ability to judge this case,” the juror paused and finally said, “I don’t know.” The court denied the defendant’s challenge for cause to this prospective juror. The defense then exercised a peremptory challenge to remove her and exhausted all of its peremptory challenges prior to the end of jury selection.

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It sounds like a bad joke: A cop rolls up to a citizen and says “what’s up, guys.” The citizen does not respond. He puts his head down and starts walking faster. The reason for the stop? He was staring.  The New York Law Journal reported that “[a]n appeals court set aside a man’s conviction for weapons possession after concluding that his arrest was premised on nothing more than the defendant looking in the direction of police as he walked in a ‘higher-crime’ area of Buffalo.” Was this a friendly greeting or a police inquiry?

The Court finds that the police’s action required a reason. More than simply a police officer engaging with a citizen, the officer engaged in a level of intrusion as discussed by De Bour and its progeny. Indeed, [the officers engaged in a level one approach and request for information when they concluded the traffic stop after observing defendant and the other men walking down the sidewalk, crossed the street in their marked patrol vehicle in order to drive alongside the men, and asked them the basic, nonthreatening question, “what’s up, guys?” (see People v. Howard, 129 AD3d 1654, 1654; People v. Johnston, 103 AD3d 1202, 1203, lv denied 21 NY3d 912; People v. Carr, 103 AD3d 1194, 1194). Contrary to the People’s contention, it cannot be said, under such circumstances, that the officers’ approach and inquiry was merely a “friendly greeting” that did not constitute a request for information (cf. People v. Thornton, 238 AD2d 33, 35)] Pp. 2 (internal citations preserved). more

Police are allowed to interact with citizens from on day to day encounters. Whether buying a cup of coffee or saying hello, police officers have that latitude to speak to people during their tour of duty. The question becomes when does the interaction from the police become one where the approach and, (what likely follows), the subsequent seizure and/or search becomes illegal.

The testimony at the suppression hearing established that at approximately 6:30 p.m. on January 18, 2013, a Buffalo police officer and his partner were conducting a traffic stop in the parking lot of a gas station when they observed defendant and two other men walking down the sidewalk on the other side of the street in a “higher crime area.” According to the officer, defendant was “staring” at him and his partner or at their marked patrol vehicle. Upon concluding the traffic stop, the officers crossed the street in their vehicle in order to drive alongside the men, the officer asked, “what’s up, guys?” from the rolled-down passenger window, and defendant then put his head down and started walking away at a faster pace. The officer thereafter observed defendant drop a gun holster to the ground and, after exiting the vehicle and picking up the holster, the officer saw defendant discard a handgun into nearby bushes. The officer’s partner positioned the patrol vehicle to cut off defendant’s path of travel, and defendant was eventually apprehended.

Pp. 1-2 (external quotation marks omitted). Here, the Defendant pled guilty to criminal possession of a weapon in the second degree. The appeal comes by way of the Defendant’s contention that the Supreme Court was wrong in refusing to suppress physical evidence, namely the handgun. The issue here is the police approach as described above.

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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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