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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

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New York Criminal Defense Attorneys know that the criminal justice system is coercive, often resulting in people who are afraid of the consequences or stuck in jail to plead guilty to things that may not have actually occurred. Plea bargains must be entered into voluntarily. A plea cannot be coerced from a defendant by improper means, whether physically coerced or coerced by the threat of punishment for taking the case to trial and obtaining a guilty verdict on a lesser charge. Not a television drama, criminal defense attorneys advise their clients of their options, weighing the evidence and the people’s ability to prove their case beyond a reasonable doubt. While being found guilty of a lesser included charge may result in jail time (or an alternative sentence), a judge cannot comment that the defendant will have a certain fixed sentence after jury trial as opposed to a range of sentence for a crime of which he or she has not been convicted.

While we do not know the facts and circumstances of this case, the Fourth Department allowed a defendant to withdraw his guilty plea:

During discussions over the plea offer, the court addressed the possibility of a jury convicting defendant of the lesser included offense of manslaughter in the first degree by stating: “[Y]ou wouldn’t get any better than 25 [years] if you get a manslaughter. That’s a big ‘if.'”…”[T]he court’s statements do not amount to a description of the range of potential sentences but, rather, they constitute impermissible coercion, rendering the plea involuntary and requiring its vacatur” (People v. Kelley, 114 AD3d 1229, 1230 [internal quotation marks omitted]; see People v. Boyde, 122 AD3d 1302, 1302-1303).

Do not be forced to enter a guilty plea. Contact a criminal defense attorney and evaluate your options. Call the Law Offices of Cory H. Morris: 631-450-2515.

People v. Williams, KA 14-00717, NYLJ 1202772393196, at *1 (App. Div., 4th, Decided November 10, 2016)

In the Matter of Jamal S, ” Officer Leo and his partner were on patrol when they observed respondent Jamal S. and his companion riding their bicycles against the flow of traffic on a one-way street.” As so many others in New York City, the juvenile was stopped, he was questioned and, because he did not have identification (and likely due to his suspected age), he was taken to the police precinct. While “Officer Leo intended to issue respondent a summons for disorderly conduct (Penal Law § 240.20 [7]),” an exercise in discretion results in “the officers patt[ing] him down, plac[ing] him in handcuffs and transport[ing] him to the precinct. When he arrived at the precinct at approximately 11:00 p.m., he was searched a second time.” He was searched and searched again. The Court of Appeals defines the issue  as “whether the police had the authority to arrest respondent and whether the subsequent search of his shoes was reasonable.” more

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In People v. Joseph, the Court of Appeals holds that Defendant’s Burglary Conviction cannot Stand because the Residential Area of the Building could not be accessed from where he entered.

The Defendant was charged “with one count each of burglary in the second degree (Penal Law § 140.25 [2]), burglary in the third degree (Penal Law § 140.20), resisting arrest (Penal Law § 205.30) and attempted escape in the second degree (Penal Law §§ 110; 205.10 [2]).” Here, the Court of Appeals grapples with whether the Defendant actually committed a burglary as defined by the Penal Law.

The facts are recited by the Court as follows:

On the evening of June 28, 2010, defendant entered the basement of the Greenleaf Deli in Manhattan. The deli was located on the ground floor of a seven-story building, with six floors of residential apartments above it. The basement, which was only accessible through two cellar doors located on the public sidewalk adjacent to the deli, was used to store deli merchandise. There was no access from the basement to any part of the residential units of the building, or to the deli itself. The apartment residents did not have access to the basement and only deli employees were permitted to enter the basement. An employee observed defendant on the deli’s surveillance monitor enter the open doors to the deli basement and walk around the basement with a flashlight. The employee went outside, closed and locked the basement doors and called 911. The police arrived, asked defendant to climb out of the basement, and, after a struggle, arrested him.

The argument put forward, before and during trial, by his defense attorney was that the deli basement was not a dwelling as the law defined it. Indeed, longstanding law holds that “if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist.” People v McCray (23 NY3d 621, 625 [2014]).   more

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In People v. Clark, the New York Court of Appeals throw out a first degree murder charges because the People, the prosecutor, did not act diligently in obtaining evidence.

The issue was ” whether the Appellate Division erred in holding that the People were chargeable with the period of delay of 161 days for DNA testing after having failed to exercise due diligence in seeking defendant’s DNA exemplar in order to conduct comparative testing with the DNA obtained by the Office of Chief Medical Examiner (OCME) from the gun that was the subject of weapons offenses charged in the indictment.” Id. at 1

In the end, the Court of Appeals affirmed the dismissal of the attempted first degree murder indictment on speedy trial grounds. While DNA had been recovered from the gun involved, a swab of the Defendant’s DNA was not taken until nine months after indictment:

CPL 30.30, the “so-called ‘speedy trial’ statute,” is a longstanding fixture in our State’s prosecution of criminal actions and was specifically intended “to address delays occasioned by prosecutorial inaction” (People v McKenna, 76 NY2d 59, 63 [1990]). In 1972, when the legislature enacted CPL 30.30, it was accompanied by a memorandum of the State Executive Department, Crime Control Counsel which declared “the purpose of the bill [is to] ‘promote prompt trials for defendants in criminal cases,'” noting “that ‘[t]he public, defendants and the victims of crimes all have a strong interest in the prompt trial of criminal cases'” (People v Anderson, 66 NY2d 529, 535 n 1 [1985], quoting 1972 McKinney’s Session Laws of NY, at 3259).

“Pursuant to CPL 30.30 (1)(a), the People must be ready for trial within six months of the commencement of a criminal action accusing a defendant of a felony offense” (People v Carter, 91 NY2d 795, 798 [1998]). “CPL 30.30 (4) lists the periods which are to be excluded from the computation of time within which the People are required to be ready” (McKenna, 76 NY2d at 62). CPL 30.30 (4) (g), the statutory provision at issue here, allows the exclusion of “periods of delay occasioned by exceptional circumstances” in obtaining unavailable evidence “material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence” (CPL 30.30 [4] [g]).

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After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree. A new trial is ordered because of the prosecutor’s statements regarding DNA evidence. The weight of the evidence was against the defendant. A gun was found and the defendant confessed. It is important to note, irrespective of the reasons for why it was done, that the prosecutor’s statements are what gives rise to a new trial.

The facts are as follows

On the evening of September 13, 2012, two officers of the Buffalo Police Department were patrolling a high crime area on the east side of the city when they saw a vehicle stop abruptly outside of a house. Defendant exited the vehicle, looked several times at the officers’ patrol car, and walked quickly towards the back of the house. The officers suspected defendant of trespassing and quietly followed him, approaching the house from different directions. They lost sight of defendant for approximately 15 to 30 seconds. Defendant suddenly emerged from behind the house, and one officer began questioning him about his behavior. The other officer reported that he had seen defendant “standing next to” a blue City of Buffalo garbage tote located nearby. When one officer lifted the lid of the garbage tote, defendant dropped his head and said, “oh man.” A loaded gun was inside. Defendant was arrested and confessed to having possessed the gun.

Although the ” Defendant moved to suppress the gun and his statements to the police, arguing that he abandoned the gun in response to unlawful police pursuit and that he was arrested without probable cause,” (id. at p.2), the Court only suppressed the statements, finding that the Police were engaged in observation and not pursuit. While the Court finds that the evidence here is sufficient to support the conviction, the Court finds that the statements made by the prosecutor should result in a new trial. more

A college student’s inappropriate behavior became criminal in class. “Defendant is accused by information of public lewdness (see Penal Law §245.00) on account of an incident that is alleged to have occurred in an accounting class at Hofstra University on September 3, 2014.” Id. at 1. “[A] person is guilty of public lewdness “when he [or she] intentionally exposes the private or intimate parts of his [or her] body in a lewd manner or commits any other lewd act…in a public place.” Id. at 10 (citing Penal Law §245.00(a). The accusatory instrument alleges that a text message was sent by one student to another student, the complaining witness, asking the complaining witness to “touch it” and exposing his erect penis. There were about twenty other students and a teacher in the classroom at the time. Although a private institution, the Court finds little issue in finding a Hofstra classroom a public place.

The standard for sufficiency is as follows:

It is well-settled that an information is sufficient only if it both provides reasonable cause to believe that the person named in it committed the offense charged, and contains sworn, non-hearsay allegations of fact supporting every element of that offense, and that person’s commission thereof (see CPL 100.15, 100.40[1]). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson, 92 NY2d 677, 685 NYS2d 409 [1999]; People v. McGee, 204 AD2d 353, 611 NYS2d 261 [2d Dept 1994]; People v. Li, 192 Misc2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]; People v. Coyle, 186 Misc2d 772; 719 NYS2d 818 [Nassau Dist Ct 2000]), but conclusory statements, unsupported by facts, are inadequate (cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 [1986]). An information thus must demonstrate the existence of a prima facie case (People v. Henderson, supra), but the prima-facie-case requirement is not the same as the burden of proof beyond a reasonable doubt (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (cf. People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; People v. Henderson, supra), but the court is limited to reviewing the facts as they are set forth in the four corners of the accusatory document (see People v. Voelker, 172 Misc2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1]).

Id.at 9-10 (external quotation marks omitted and internal citations more

New York Marijuana Arrests are especially high in New York City. Smoking pot in public. Usually the defendant was smoking in a park or had the unique scent of marijuana emanating from their possessions before the New York City Police intervene. In People v. Velez, 2015CN008005, NYLJ 1202765159918, at *1 (Crim., NY, Decided August 12, 2016), the Defendant was charged with one count of Criminal Possession of Marihuana in the Fifth Degree (Penal Law §221.10 [1]) and one count of Unlawful Possession of Marihuana (Penal Law §221.05). As is often the predicate of a great many arrests, stops, searches, seizures and sometimes frisks, the New York City Police Officers swore that

“I observed the defendant holding a marijuana cigarette in a public place and open to public view. I then took the marijuana, one cigarette containing marijuana, from the ground where I observed the defendant discard it. I took marijuana, two bags containing marijuana not burning or open to public view, from the defendant’s pocket. I observed Police Officer Christopher O’Connor, Shield # [] of the Midtown North Precinct also take five bags containing marijuana from a container in the defendant’s bag…I believe the substance is marijuana based upon my professional training as a police officer making marijuana arrests, the odor emanating from the substance, an observation of the packaging, which is characteristic of marijuana, and a field test that confirmed that the substance is marijuana.”

The Defendant was arrested  for the marijuana that the defendant allegedly threw to the ground. Was it in a public place? As The New York Law Journal Reports, “[a] Manhattan judge has tossed out a drug possession charge for a man accused of holding a marijuana cigarette in public, finding that the complaint against him did not adequately describe the public place where he allegedly committed the offense.”  more

The Fourth Amendment, just like the regulations of a driverless car, does not end with the advent of new technology.  Here the use of a cell-site simulator to track down a criminal suspect without a warrant has led to the suppression of a large amount of narcotics seized from a New York City apartment. Logistically, this meant that the scales utilized and narcotics that were likely being sold by the defendant and are suppressed and cannot be used against the defendant at a criminal trial because this New York City tenant was subject to a Fourth Amendment violation by Drug Enforcement Administration Agents:

The Fourth Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. “[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). “[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). Barring a few narrow exceptions, “warrantless searches ‘are per se unreasonable under the Fourth Amendment.'” City of Ontario v. Quon, 560 U.S. 746, 760 (2010) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The home has special significance under the Fourth Amendment. “‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'” Kyllo, 533 U.S. at 31 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

Although technology changes the law evolves to catch up with it. Here, a case nearly half a century old, is invoked by the Southern District of New York to suppress this cell-site simulator: Kyllo v. United StatesKyllo dealt with the production of marijuana, the growing of marijuana, and the use of thermal imaging to detect the grow house. Although widely available now (try a Google search), at the time thermal imaging was only available to the government and allowed them to have “through-the-wall surveillance,” a violation of one’s Fourth Amendment Rights. At the time it was break-through technology. Like Kyllo, “the DEA’s use of the cell-site simulator to locate [Defendant’s] apartment was an unreasonable search because the ‘pings’ from [Defendant’s] cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator.” (citing United States v. Knotts, 460 U.S. 276, 281 (1983); State v. Andrews, 227 Md. App. 350, *23 (Md. Ct. Spec. App. 2016)). The advent of such technology, as in Kyllo, does not allow the government to skirt the Fourth Amendment rights of the Defendant:

The use of a cell-site simulator constitutes a Fourth Amendment search within the contemplation of Kyllo. Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device. Perhaps recognizing this, the Department of Justice changed its internal policies, and now requires government agents to obtain a warrant before utilizing a cellsite simulator. See Office of the Deputy Attorney General, Justice Department Announces Enhanced Policy for Use of Cell-Site Simulators, 2015 WL 5159600 (Sept. 3, 2015); Deputy Assistant Attorney General Richard Downing Testifies Before House Oversight and Government Reform Committee at Hearing on Geolocation Technology and Privacy, 2016 WL 806338 (Mar. 2, 2016) (“The Department recognizes that the collection of precise location information in real time implicates different privacy interests than less precise information generated by a provider for its business purposes.”).

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Demand an attorney – in New York, one has the indelible right to counsel once the demand is made. This has tremendous importance. The right to counsel, the invocation of that right in New York, can lead to the suppression of evidence. This can occur even in Driving While Intoxicated (DWI) cases. Here, this New York City Criminal Defendant demanded his attorney before providing a breath sample, a breath test, that was later suppressed because he asserted this right.

The Defendant here was charged with Reckless driving (Vehicle and Traffic Law §1212), operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law §1192 [3]); overtaking a Vehicle on the left (Vehicle and Traffic Law §1163-c) and an equipment violation. As the case often starts, the motorist is stopped and the officer approaches the car. “The defendant was the only person in the vehicle. The officer asked the defendant for his license and registration and through the open window smelled alcohol on the defendant’s breath. Additionally, that the defendant had bloodshot, blurry eyes and his speech was slurred….The defendant was given a portable breath test. The device used had not been calibrated in months. Nevertheless, the defendant registered over a 0.1 blood alcohol content (BAC).” The motorist was arrested and taken to the police station for test to determine his BAC.  At the station, the following colloquy ensued:

The entire exchange took place in about two minutes: the officer announced the start time as 5:43 am and the ending time as 5:45am. When the defendant was asked if he was consenting to a breath test, the defendant shook his head side-to-side and stated: “Until I speak to my lawyer, not —.” The officer interrupted and asked the defendant if he was consenting: “yes or no.” The defendant replied: “I am saying no because I don’t have a lawyer —.” The officer interrupted again and then quickly read a lengthy warning pertaining to the consequences of refusing to take a breath test. The officer again asked the defendant: “I will ask you again, will you take this breath test?” The defendant replied: “I will say no because I don’t have a lawyer and I don’t know what to do —.” Again the defendant was cut off. The officer then asked the defendant if he would take a physical coordination test. The defendant shook his head and said: “I am not taking anything until I get a lawyer.” The defendant was administered the Miranda warnings by another officer. When asked if he understood his right to remain silent and that the statement could be used in court, the defendant replied to each question: “Yes sir.” When it came to the question pertaining to his right to consult an attorney, the defendant stated: “Yes sir, that is what I was saying for a while ago, for a lawyer.” When finally asked if he wanted to waive these rights and answer questions, the defendant stated: “Not unless I have a lawyer.” The video then ends.

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The People of the State of New York failed to demonstrate that the defendant understood the Miranda warnings and his statement, therefore, such statements should have been suppressed. Here, the “defendant was charged, inter alia, with robbery in the second degree and criminal possession of stolen property in the fifth degree based on allegations that he personally, or acting in concert with others, committed robberies in two stores in Brooklyn.” He was convicted of robbery in the second degree (three counts) and criminal possession of stolen property in the fifth degree. The Court “Ordered that the judgment is reversed, on the law, the defendant’s motion to suppress his statements to law enforcement officials is granted, and a new trial is ordered.”

Once the right to counsel is invoked, a New York Defendant has the indelible right to counsel. Police cannot question a New York Defendant once that Defendant demands an attorney. This case is a hallmark example of how Miranda rights can be skirted and, sometimes, disregarded when a Defendant is not of sound capacity, mind or understanding as to his constitutional rights, his Miranda rights, and how to exercise those rights. Involuntarily given statements are inadmissible. The court sets out the hallmark factors of admissibility of a Defendant’s statement:

“[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 [2012] [citation omitted]; see People v Rodney, 85 NY2d 289, 292 [1995]; People v Williams, 62 NY2d 285, 288 [1984]). “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 [2013] [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 [1979]). 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).

“A defendant’s mental deficiency weighs against the admissibility of an elicited confession, so that any such confession must be measured by the degree of the defendant’s awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them” (People v Dunn, 195 AD2d 240, 242 [1994], affd 85 NY2d 956 [1995]). A suspect of “subnormal intelligence” may effectively waive his or her Miranda rights “so long as it is established that he or she understood the immediate meaning of the warnings” (People v Williams, 62 NY2d at 287), that is, “how the Miranda rights affected the custodial interrogation” (id. at 289). Therefore, it must be shown that the suspect “grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject’s disadvantage; and that an attorney’s assistance would be provided upon request, at any time, and before questioning is continued. What will suffice to meet this burden will vary from one case to the next” (id.).

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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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The Appellate Division, Third Department, provides another example of why it is important to speak to an attorney before speaking with the police, even in a traffic stop. New York DWI is not limited to alcohol. As prescription medications become more prescribed and more prevalent in the lives of New Yorkers, one must understand that Driving Under the Influence and New York Driving While Ability Impaired can occur with a mix of legal drugs and alcohol. New York Driving While Ability Impaired can result from taking legally prescribed medication in excess or to the point of intoxication. Of course, Driving While Ability Impaired can also result from taking illegal medications, such as prescription painkillers, and driving a vehicle.

New York Criminal Defense attorneys and clients should know that even over the counter medications can impair one’s ability to a drive a vehicle. Medications have obvious warnings on them: do not operate heavy machinery, do not take more than a certain amount, etc. One must be diligent in what he or she ingests. Additionally, one must be very careful not to get behind the wheel of a car under the influence of any intoxicant. Lastly, should you be confronted by the police, whether for a traffic stop or because you were in a car accident, speak to an attorney: Call the Law Offices of Cory H. Morris – 631-450-2515.

This case involved a car crash where it was alleged that the driver was driving while his ability to do so was impaired that resulting in death. What is key to note is that the driver demanded an attorney – something everyone should do when questioned by the police – and his indelible right to counsel attached (in New York the right to counsel is indelible) which the police violated and, as a result, the chemical tests were suppressed.

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The defendant in Avinger was charged and convicted of  burglary in the third degree, criminal possession of stolen property in the third degree, possession of burglar’s tools, and criminal mischief in the fourth degree. The Second Department holds that the evidence must be suppressed.

Upon suspicion of a burglary, New York City Police Department detectives went to a home to investigate. There was no answer at the door and the New York City Police Department (NYPD) detectives decide to enter the yard of the house. One should note this pivotal point in the factual pattern.

The NYPD then walk through the yard of another home and enter the rear yard of a neighboring home. The New York City Police Department detectives then walked through an alleyway that provided access to the rear of the home at issue. Once there, NYPD Detectives found a car bearing the license plate of which they were investigating. Upon further searching, the detectives peered through the window of a garage discovering video game consoles and video games. Detectives later learned that these video game items were the subject of a burglary. The detectives found and arrested the defendant at the premises. At issue becomes the search and seizure: more

The appeal here comes from a conviction, after a jury trial, of predatory sexual assault against a child and course of sexual conduct against a child in the first degree. The defendant here was infected with a certain sexually transmitted disease (STD) that was proved at trial albeit without testimony. The issue becomes whether there is a confrontation clause issue.

Recently, the Supreme Court held that no Confrontation Clause violation occurred when the statements of a three year old child, who did not testify, were admitted into evidence against a defendant. The Court held that these statements by a child to a teacher were made to address an ongoing emergency: child abuse. Since Crawford v. Washington, Courts have struggled with what is barred by the Sixth Amendment’s Confrontation Clause. Criminal defense attorneys know that the issue is daunting and the Crawford decision has led to much confusion.

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Like any good rule, however, there are exceptions. In Ohio v. Clark, 135 S.CT. ___ (June 18, 2015), the Supreme Court of the United States reversed: holding that the introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother’s boyfriend as the source of his injuries did not violate the Confrontation Clause, when the child did not testify at trial, because the statements were not made with the primary purpose of creating evidence for prosecution.

Later decisions would clarify what was and what was not testimonial. The Supreme Court made clear that “if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” In Bullcoming, a Driving While Intoxicated (“DWI”) prosecution, the Court evaluated whether a blood analysis was testimonial even though it was made in the regular course of DWI prosecutions. Although this occurs quite regularly in criminal trials, the Supreme Court held that “[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because— having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.”  more

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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The accused has the Constitutional Right to a Speedy Trial. Recently, the Supreme Court in Betterman declared the sole remedy for a speedy trial violation: dismissal. In New York State, the speedy trial right is codified in the New York Penal Law. New York State codifies that constitutional right to speedy trial and mandates the same and only remedy: dismissal.

Although a harsh remedy, New York Penal Law Section thirty sets forth certain criteria for determining when the clock starts to run and how the time is attributable to the People or the Defendant. Like the Supreme Court, The Court of Appeals recently took a case that affirms longstanding law in New York Stat: Consent to an adjournment by the Defense must be clear and unequivocal. Here the issue arises as to what occurs when the Court calendar, the People’s calendar and defense counsel’s calendar does not mesh: who is responsible for what period of time.

The Court of Appeals notes that, in this case, they are “asked to determine who is chargeable, for statutory speedy trial purposes, with each discrete time period within a pre-readiness adjournment when the People initially request an adjournment to a specific date, defense counsel is unavailable on that date and requests a later date, but the court is unavailable on the later date, resulting in an even longer adjournment.” Pp. 1-2. Issues of court congestion may have confused defendants and practitioners. Court congestion in New York State and New York City Criminal Courts have spawned long needed discussion (and potential legislation) addressing the speedy trial rule and its failure to address the People’s violations of citizens’ right to a speedy trial.

Like any good rule, there are exceptions. One such exception that is tackled here is what time should be attributable to which party when there are conflicting schedules. Defense can consent but such consent must be express. Such consent stops the speedy trial clock from running against the People’s time to answer and be ready for trial. Longstanding law is clear on the matter of defense consenting to later adjournments: People v Smith (82 NY2d 676 [1993]):

“Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent. The adjournments at issue here were, in the first instance, precipitated by the People’s failure to be ready for trial. Other than stating that certain dates were inconvenient, defense counsel never formally consented to the adjournments and did not participate in setting the adjourned dates. Because the actual dates were set either by the court or the prosecution, no justification exists for excluding the additional adjournment time required to accommodate defense counsel’s schedule” Pp.3 (citing Smith, at 678 [internal citation omitted ]).

The Court of Appeals here, in Barden, spells it out clearly: “Smith states that counsel’s mere failure to object to an adjournment, or indication that a date requested by the People is inconvenient, is not a request or a clear expression of consent for purposes of calculating excludable time under CPL 30.30″ Pp. 3. Barden takes it one step further, however, making it clear that time allotted by the Court beyond the time requested by Defense counsel is chargable to the People: “Contrary to the People’s argument, counsel’s accommodation of the court’s schedule — merely by failing to express an objection to the alternate date proposed by the court after it indicated that the date suggested by counsel was not available — cannot, under CPL 30.30, be considered consent to the extension of the adjournment beyond March 28.” Pp. 4.  more

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.

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

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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.)

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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

Spread the word: Phone calls made in jails and prisons are often subject to recording. Here, the (New York) department of corrections recorded the defendant’s phone calls to the complainant which, inter alia, could very well served as the proof of yet another criminal charge. The original set of domestic violence charges stems from the defendant assaulting the complainant and her son. In one instance of assault, an off-duty police officer (as well as the defendant) were shot. New York domestic violence cases are difficult to prosecute because the failure of the complaining witness to comply with court orders and follow through with pursuing criminal charges against the perpetrator of domestic violence. As is the case here, sometimes the perpetrator of domestic violence takes an active role in preventing the witness (complainant) from coming forward. The issue becomes whether statements of the complaining witness can be utilized against the defendant when the defendant prevents the complainant from testifying against him.

In the instant matter, “[t]he People have moved to admit into evidence at trial out-of-court statements made by the complainant at or around the time of the commission of the crime, both on audiotape to an Assistant District Attorney, and before the Grand Jury, claiming that the complainant is unavailable to testify at trial due to misconduct by the defendant. The defendant opposes the motion and a hearing was held on July 20, 2015, and continued on September 11, 2015, September 25, 2015, and concluded on October 30, 2015.” The pertinent law is as follows:

A defendant in a criminal case enjoys the right to confront the witnesses against him at trial pursuant to the Sixth Amendment of the United States Constitution. This right can be voluntarily waived by a defendant; it can also be forfeited if his own misconduct renders a witness unavailable to testify at trial. United States v. Mastrangelo, 693 F 2d 269 (1982), cert denied 456 U.S. 973 [1982]; Snyder v. Mass, 291 U.S. 97 (1934). If a witnesses’ unavailability is procured by the defendant through chicanery (United States v. Mayes, 512 F 2d 687 [6th Cir, 1975], cert den 422 U.S. 1008 [1975]); by threats (United States v. Balano, 618 F 2d 624 [10th Cir, 1979], cert den 449 U.S. 840 [1980]); or by actual violence or murder (United States v. Thevis 665 F 2d 616 [5th Cir, 1982], cert den 456 U.S. 1008 [1982]), the defendant cannot assert his Confrontation Clause rights or the rules against hearsay to prevent out-of-court statements from being admitted against him. Any other result would mock the very system of justice the Confrontation Clause was designed to protect. United States v. Mastrangelo, supra, at 273. Included in witness intimidation is the use of a relationship in which a defendant has a “controlling” or “coercive” effect on the witness. People v. Byrd, 51 A.D.3d 267(1st Dept. 2008); see also People v. Johnson, 93 NY 2d 254 (1999). This is especially true in domestic violence cases. See People v. Santiago 2003 NY Misc Lexis 829 (NY Co. Sup Ct 2003, Atlas, J.)

New York State has adopted this rule based on the sound public policy of protecting the integrity of the adversarial process by deterring litigants from tampering with witnesses who may testify adversely to them. People v. Geraci, 85 NY 2d 359 (1995). At a hearing to determine whether such misconduct occurred, causing a witness to become unavailable to the People, the prosecutor’s burden is to show, by clear and convincing evidence, that the witness’ unavailability was procured by the defendant’s misconduct. Geraci, supra, at 366; People v. Cotto, 92 NY 2d 68 (1998); Holtzman v. Hellenbrand, 92 AD 2d 405 (2nd Dept. 1983) If the People meet that burden, the defendant is precluded from asserting either the constitutional right of confrontation, or the evidentiary rules against the admission of hearsay, to prevent the admission of the witness’ out-of-court declarations. Geraci, at 366; Cotto, at 76. These statements are not limited to Grand Jury testimony but can include other out-of-court statements. Cotto at 77.

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A New Trial is Ordered for a Nassau County Criminal Defendant removed from his trial without warning. This case hails out of Long Island, New York. Practicing as a criminal defense attorney out of Suffolk County, New York, I sometimes hear fellow attorneys and friends discuss criminal cases where someone got “off” on a technicality. When I hear that, I usually think constitution: The criminal defendant asserted his rights under the constitution – the violation of a criminal defendant’s constitutional rights resulted in a new trial or a dismissal. Here, another nuanced constitutional right, the Defendant had the right to be present at all material stages of the his trial. The Appellate Division, Second Department describes that right as fundamental:

A defendant has a “fundamental constitutional right to be present at all material stages of a trial,” including “the court’s charge, admonishments and instructions to the jury” (People v Rivera, 23 NY3d 827, 831; see People v Harris, 76 NY2d 810, 812; People v Mehmedi, 69 NY2d 759, 760). However, “[a] defendant’s right to be present during trial is not absolute,” and “[t]he defendant may be removed from the courtroom if, after being warned by the trial court, the disruptive conduct continues” (People v Joyner, 303 AD2d 421, 421; see Illinois v Allen, 397 US 337, 343; People v Rivas, 306 AD2d 10, 11; People v Connor, 137 AD2d 546, 549). CPL 260.20 provides, in relevant part, “that a defendant who conducts himself in so disorderly and disruptive a manner that his trial cannot be carried on with him in the courtroom may be removed from the courtroom if, after he has been warned by the court that he will be removed if he continues such conduct, he continues to engage in such conduct.”

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Defendant was charged with four counts of assault in the second degree, two counts of criminal possession of a weapon in the fourth degree, and one count of endangering the welfare of a child. A recording was made by the father of the child, “which was played to the jury at defendant’s trial, defendant told the five-year-old boy that he was going to hit him 14 times for lying and that this would hurt more than a previous beating.” The defendant contested to the use of the recording and that ” the recording amounted to eavesdropping in violation of Penal Law § 250.05, because no party to the conversation consented to the recording, so that the evidence was inadmissible under CPLR 4506…”

The trial court allowed the recording to be admitted into evidence, with respect to the endangering the welfare of a child count, holding that the father’s action was not eavesdropping, and that, even if it were, it was justifiable on the basis of the “duty of the father to take some action once he heard [defendant’s] conduct.” The court relied on People v Clark (19 Misc 3d 6 (App Term, 2d Dept, 2d & 11th Jud Dists 2008), lv denied 10 NY3d 861 [2008]), in which the Appellate Term permitted the admission of a recording based on a theory of vicarious consent.The Appellate Division affirmed the trial court’s judgment (124 AD3d 672 (2d Dept 2015))… [adopting] the vicarious consent doctrine, as recognized with respect to the federal wiretap statute by the Sixth Circuit in Pollock v Pollock (154 F3d 601 [6th Cir 1998]), and in New York by the Appellate Term in People v Clark.

In New York, “[t]he contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury” (CPLR 4506 [1]). The Court finds that father’s actions on his cellphone did not constitute “wiretapping” because, with respect to the telephonic communication he recorded, he was “a sender or receiver thereof.” Penal Law § 250.00 (1). “Defendant argues, however, that the father’s actions amounted to the crime of “‘ mechanical overhearing of a conversation’ ” (Penal Law §§ 250.05, 250.00 [2]), and that the recording was consequently inadmissible. The New York Court of Appeals holds that “the definition of consent, in the context of “mechanical overhearing of a conversation” pursuant to Penal Law § 250.00 (2), includes vicarious consent, on behalf of a minor child.”: more

The crux of many complaints, it took over a year and a half for the Bronx Criminal Court to dismiss the charges against a criminal defendant on speedy trial grounds. Often confusing to both practitioners and clients, the New York speedy trial rule is codified in the Criminal Procedure Law (CPL). New York Criminal Defendants have both a constitutional right to a speedy trial as well as a statutory right to speedy trial.  Generally speaking, the issue of whether the People (New York District Attorneys) have satisfied their obligation, statutorily, under CPL §30.30 is determined by (1) “computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness”; (2) “subtracting any periods of delay that are excludable under the terms of the statute”; and then (3) “adding to the result any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.” People v. Cortes, 80 NY2d 201, 208 (1992).

After the people announce ready, the defendant generally has the burden of showing that adjournments should be charged to the People. See People v. Anderson, 66 NY2d 529, 541 (1985); People v. Daniels, 217 AD2d 448, 452 (1st Dep’t. 1995), Iv dismissed, 88 NY2d 917 (1996). This is often where the waters get murky and people get confused. 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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In New York, you can be charged with a crime for some rather innocuous behavior, including rioting. Hire a good criminal defense attorney – that is no April Fools Joke. The Defendant here was accused of just that, rioting, “being involved in a fight where he and at least four other individuals struck each other with closed fists.” The Court’s job here was to evaluate the criminal charges to see if they were legally sufficient.

The charges filed indicate that there was a fight, a brawl… Perhaps even, a riot. In this “melee” a chair was thrown and people were thrown all about. As a result, the Defendant is charged with Riot in the Second Degree (PL §240.05) and Disorderly Conduct (PL §240.20[5]).

Penal Law §240.05 provides that “[a] person is guilty of riot in the second degree when, simultaneously with four or more other person, he engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of public alarm.” “The phrase ‘tumultuous and violent conduct’…means much more than mere loud noise or ordinary disturbance. ‘It is designed to connote frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts.'” People v. Morales, 158 Misc.2d 443 (Crim Ct, NY County 1993), quoting Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law §240.05, at 210.

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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

The case highlights the importance of a New York Criminal Defense Attorney preserving the record and properly exercising juror challenges because, as was the case here, even a seemingly innocuous statement and position by the New York Assistant District Attorney trying the case can result in a reversal. The situation is such that the Criminal Defendant and two other individuals go to a strip club where the Criminal Defendant drinks and pays for a lap dance. Evidently upset at the quality of the dance, a scuffle ensues. The accusation is that the Defendant assaulted another resulting in serious bodily injury.

Here, the record reflects that the People sought to exercise peremptory challenges to exclude four of the five nonwhite individuals comprising the second panel of prospective trial jurors. Indeed, as defense counsel noted, “The only [nonwhite juror] who was not excluded [from this panel] was the daughter-in-law of the former Chief of Police of the Albany Police Department.” In response to defense counsel’s Batson challenge, County Court asked the People — “based upon the peremptory challenges” asserted — to “give a race-neutral reason…for th[o]se selections,” thereby implicitly finding that defendant had made a prima facie showing of discrimination. The People provided such an explanation as to prospective juror Nos. 4, 6 and 17 but refused to offer a race-neutral explanation as to prospective juror No. 2, noting that this juror was the first nonwhite juror that they had sought to exclude by use of a peremptory challenge. As the prosecuting attorney succinctly put it, “I shouldn’t be made to give a reason for the first one.” Defense counsel took issue with the People’s lack of a raceneutral explanation for the exclusion of this juror, noting that “the fact that [prospective juror No. 2] was the first person of color [to be] excluded [was]…merely fortuitous.” County Court rejected defendant’s argument on this point and allowed the People to exercise a peremptory challenge to exclude prospective juror No. 2, as well as prospective juror Nos. 4 and 6.

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The Defendant was charged with, among other things, Driving While Intoxicated (VTL 1192). Defendant challenges the stop and subsequent arrest. Defendant further claims that the results of his blood alcohol test should be suppressed because his right to counsel was violated. The officer, a veteran in driving while intoxicated detection, pulled over the defendant inquired as to whether the defendant had anything to drink. At first, the defendant denied drinking anything. Sobriety tests were performed and a portable breath test came up with results of .07 and .08. The police officer asked the defendant again if he had anything to drink to which the defendant responded that he drank a sip of wine. The defendant was taken into custody and asked to speak to an attorney.

“A defendant has a qualified, not an absolute, right to counsel when deciding whether to submit to a breath test to determine blood alcohol content (see People v. Smith, 18 NY3d 544, 549 [2012]; People v. Gursey, 22 NY2d 224, 227 [1968]). However, once afforded, if that qualified right is to have any meaning, the communication between the defendant and his or her attorney must be private. Because the police prevented that privacy here, the court suppresses the results of the breath test, all statements defendant made while on the phone with his attorney, and that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 1. more

The Prosecution failed to present legally sufficient evidence at trial – the trial involving sexual assault against a child. The Defendant here was a Rabbi and the child was one who was confused during testimony. The Court makes it decision not based upon the credibility of the witnesses but upon the prosecution’s failures. At the close of the case, the defense, as often happens, moved for a dismissal. Indeed,

At the conclusion of the people’s case or at the conclusion of all the evidence, the court may…issue a trial order of dismissal, dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense…. CPL §290.10(1)(a).

CPL §290.10 applies to jury and nonjury trials, alike, and permits a trial order of dismissal only when the evidence presented at trial is insufficient as a matter of law. See People v. Sabella, 35 NY2d 158 [1974]. Legally sufficient evidence means “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commissions thereof….” CPL §70.10(1); emphasis added. If the prosecutor has established a prima facie case, the evidence is deemed legally sufficient, Sabella, at 167, and the case proceeds to deliberation by the finder of fact.

Here, “the People failed, as a matter of law, to present a prima facie case in that they were unable to present legally sufficient evidence to establish the date on which the alleged offense occurred. Predatory Sexual Assault Against A Child and Sexual Abuse in the First Degree require that the prosecutor prove among other elements the date and the place of the alleged incident.” Pp. 3.  more

This appeal comes from the Nassau County Traffic and Parking Violations Agency (“TPVA”). The Defendant was charged with using a mobile telephone while operating a motor vehicle (VTL Section 1225-c(2)(a)). A non jury trial was held at the Nassau County TPVA and the police officer testified that the defendant was holding her cellular phone in her hand, next to her face, and driving the car. At this point, it is incumbent upon the Defendant to contest these assertions by the police officer. The Court here notes that the defendant “had exculpatory evidence to present” but the Court did not allow her to present her case. A verdict was rendered and the defendant, who appeared to be confused, continued to protest that she had exculpatory evidence, evidence that tends to prove her innocence, that she wanted to present to the Court. The defendant was convicted. This appeal follows as the defendant contests that she was deprived of her fundamental constitutional right to a fair trial – again, this is due to a VTL violation:

Vehicle and Traffic Law §1225-c (2) (a) provides that “no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion….” For purposes of the statute, “using” a mobile telephone means holding a mobile telephone to, or in the immediate proximity of, the user’s ear (Vehicle and Traffic Law §1225-c [1] [c] [i]), and “engage in a call” means “talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone” (Vehicle and Traffic Law §1225-c [1] [f]). Moreover, “[a]n operator of any motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section…. [and] [t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call” (Vehicle and Traffic Law §1225-c [2] [b]).

Pp. 2-3 (external quotation marks omitted and internal citations preserved). The Appellate Term states that the People have the burden of establishing the Defendant utilized the cellular phone while driving. Once the people’s burden is met, here the officer testifying as to the cellular phone use while the vehicle was in motion, the defendant should have had the opportunity to rebut the presumption made by the people. more

The issue before the Court is whether a joint trial should proceed (judicial economy) or where the trial should be severed (because of prejudice to one or more of the Defendants). In making its decision, the Court heavily relies upon the Sixth Amendment Confrontation Clause, through Crawford and its progeny, and the Defendants’ Due Process Rights to a Fair Trial. In so doing, the Court notes that

Severance may be granted for cases in which multiple defendants have antagonistic defenses. People v. Mahboubian, 74 NY2d 174 [1989]. Even if the charges against multiple defendants are properly joined in a single indictment, a trial court may grant severance “for good cause shown,” from which a court finds that a “defendant will be unduly prejudiced by a joint trial.” CPL §200.40(1). “Where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant severance.'” People v. Mahboubian, 74 NY2d 174, 183, citing, People v. Bornholdt, 33 NY2d 75, 87 [1973].

Severance is not required, even in those cases in which there is hostility between or amongst the parties, different trial strategies, or inconsistencies in each defense. People v. Cruz, 66 NY2d 61 [1985], rev’d on other grounds and remanded, 481 US 61. “It must appear that a joint trial necessarily will, or did, result in unfair prejudice to the moving party and substantially impair his defense.” Id., at 73, 74. In determining whether defenses are sufficiently antagonistic, therefore requiring severance, a court looks to two tests. In the first, a court must determine whether the defenses are logically inconsistent — whether the core of each defense is rationally irreconcilable with the other. See United States v. Romanello, 726 F2d 173 [5th Cir. 1984]. In the second test, a court must consider whether there is a danger that a jury will unjustifiably infer a defendant’s guilt because of the conflicting and irreconcilable defenses. See Rhone v. United States, 365 F2d 980 [DC Cir. 1966]. In New York, more specifically, “severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt.” Mahboubian, 74 NY2d 174, 184.

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In a strange twist, a convicted felon, pro se, wins another crack at a suppression hearing on the basis of ineffective assistance of counsel. The  Court noted that the “record is sufficient to establish that defendant received ineffective assistance when his trial counsel failed to move to reopen the suppression hearing based on trial testimony” contradicting a previous statement(s) by law enforcement. Pp. 2. Noting the standard for reopening a suppression hearing, the Court observed that:

Under CPL 710.40(4), a suppression hearing may be reopened upon a showing that the defendant has discovered “additional pertinent facts” that “could not have [been] discovered with reasonable diligence before the determination of the motion.” Here, the additional facts were “pertinent” because the superintendent’s testimony, if credited, would have undermined the ruling that the tools were admissible because they were in plain view. This was not a minor or routine inconsistency; the superintendent’s version was completely at odds with a plain view theory. Any issue of whose recollection was most reliable should have been presented to the hearing court. With regard to the “reasonable diligence” requirement, the People argue that it was not met here because defendant, who was standing several feet from the superintendent when the police arrived, was in a position to know whether the bag was closed or open at the time. Under the rule the People posit, evidence adduced for the first time from a witness at trial — no matter how reliable the witness, how unlikely he or she would have been to cooperate with the defense investigation before trial, or how conclusively his or her testimony would undermine the suppression ruling — would never entitle a defendant to a reopened hearing, so long as the defendant was in a position where he or she could have observed the same events as the witness. We reject such a narrow reading of the statute (see e.g. People v. Figliolo, 207 AD2d 679 [1st Dept 1994]). While, as a general matter, a defendant may be presumed to have knowledge of the circumstances surrounding his or her arrest (see People v. Hankins, 265 AD2d 572 [2d Dept 1999], lv denied 94 NY2d 880 [2000]), that presumption is not mandatory, and the principle does not mandate the conclusion that such knowledge existed under the particular facts of this case.

The Court notes that the Defendant “could not have known that a People’s witness would completely contradict the police officers on the critical suppression issue. Moreover, if at the hearing, he had taken the stand to present his account of the arrest, his credibility would have been subject to impeachment because his status as an interested witness and his lengthy criminal record.” Pp. 2. In making its conclusion, the Court finds that “it is far more likely that counsel, who did not represent defendant at the suppression hearing, did not focus on the contradiction and gave no thought to a motion to reopen. More importantly, even if the dissent is correct about counsel’s subjective belief that the superintendent was mistaken about the police opening the bag, it is difficult to comprehend how opting not to give the court the opportunity to make that credibility determination for itself can be deemed a competent strategy.” P. 3. more

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Although the victim did not die immediately, the injuries caused by the defendant here, eventually, resulted in the death of the victim. The victim here was elderly, almost one-hundred years old, – “[t]he conviction arises from a home invasion burglary during which the 96-year-old victim sustained, among other injuries, a subdural hematoma and so many broken facial bones that his skull remained distorted when he died approximately five months later.” Pp. 1.

The Court repeats the longstanding rule in New York:

” [i]f a person inflicts a wound . . . in such manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Indeed, it may be said that neglect of the wound or its unskillful and improper treatment, which were of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible’ ” (People v Kane, 213 NY 260, 274). Thus, “[f]or criminal liability to attach, a defendant’s actions must have been an actual contributory cause of death, in the sense that they forged a link in the chain of causes which actually brought about the death’ ” (Matter of Anthony M., 63 NY2d 270, 280). Additionally, the “defendant’s acts need not be the sole cause of death; where the necessary causative link is established, other causes, such as a victim’s preexisting condition, will not relieve the defendant of responsibility for homicide . . . By the same token, death need not follow on the heels of injury” (id. at 280).

What is interesting about this case is that the victim did not die immediately. Indeed, the court repeats over and over again that the victim was 96 years old – well past any of my relatives…

Here, the evidence established that defendant repeatedly struck the 96-year-old victim in the face and head, thereby fracturing the victim’s orbit, sinuses, and jaw in numerous places and causing a subdural hematoma, and that many of those injuries had not healed at the time of his death approximately five months later. Thus, we conclude that “the ultimate harm, i.e., death, was a reasonably foreseeable result of [that] conduct’ ” (People v Cox, 21 AD3d 1361, 1362-1363, lv denied 6 NY3d 753). Although defendant’s expert testified that the victim died of his advancing Alzheimer’s-type dementia, the Medical Examiner testified that the injuries that the [*2]victim sustained in this attack were the cause of his death. Thus, the court “was presented with conflicting expert testimony regarding the cause of death, and the record supports its decision to credit the People’s expert testimony” (People v Fields, 16 AD3d 142, 142, lv denied 4 NY3d 886; see generally People v Miller, 91 NY2d 372, 380). Consequently, we conclude that, although other possible causes of the victim’s death were not eliminated, the medical evidence, viewed in the light most favorable to the prosecution, is legally sufficient to establish that defendant’s acts “were at least a contributing cause of” the victim’s death (Anthony M., 63 NY2d at 281).

Albeit nearing one-hundred years old, the victim’s death was attributable to the Defendant and therefore the Defendant’s conviction was upheld. The case is People v. Pratcher, 2015 NY Slip Op 09730 (Dec. 31, 2015).

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The Defendant here is charged with Criminal Trespass in the Second Degree (PL §140.15[1]), Criminal Trespass in the Third Degree (PL §140.10[a]), and Trespass (PL §140.05). Defendant moved pursuant to CPL §§ 170.30(1)(e) and 30.30 to dismiss the accusatory instrument on speedy trial grounds.

The case delineates the procedural history very carefully:

  • On May 14, 2015, defendant was arraigned on a misdemeanor complaint and the case was adjourned to July 6, 2015 to join. The People stated that they were ready as to all counts.
  • On July 6, 2015, the case was adjourned to August 17, 2015 for motion practice. This court directed defendant to file his motions on or before July 27, 2015.
  • On August 17, 2015, defendant filed a motion to dismiss on the grounds of facial insufficiency. The case was thereafter adjourned to November 10, 2015 for response and decision. In their papers in opposition filed on September 29, 2015, the People conceded that the accusatory instrument was facially insufficient. The People also submitted as an exhibit to their affirmation in opposition a copy of a superseding information which purportedly cured all of the defects in the original accusatory instrument. Pp. 1 (external quotation marks omitted)

The Court, somehow unaware of the speedy trial motion to dismiss, dismissed the misdemeanor informations on the basis of facial insufficiency. The People refiled the charges and the defendant moves to dismiss, again, on speedy trial grounds. The People contest the instant motion on the grounds that no time has run against the People because the People filed new charges. more

New York VTL charges need to have some sort of factual basis. Officers who issue traffic tickets, whether it be a Suffolk County Traffic Ticket or a New York City Traffic Ticket, need to state the source of the observation which provides reasonable cause for the stop and the issuance of the Traffic Ticket. Indeed, this case holds that “where the charge is based on the Officer’s information and belief, rather than based on his personal observations, the supporting deposition must contain a statement of the source of that information and belief if it is to be sufficient on its face.” Pp. 3-4 (citations omitted). While police officers may issue such tickets often, hiring a good criminal defense attorney to challenge these traffic tickets makes all the difference:

Section 100.25(2) of the CPL entitles a defendant charged with a traffic offense to receive a supporting deposition of the police officer containing allegations of fact providing reasonable cause to believe that the defendant committed the offense charged:

“A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged.” CPL §100.25(2).

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Under the New York State Constitution, a defendant’s right to counsel is Indelible. Once attached, police questioning must cease. Although overlooked by most people (and, usually, criminal defendants), once you demand an attorney within New York State, the police must stop questioning you without the presence of counsel. This is important whether confronted with a Driving While Intoxicated Charge or Homicide charge because the police can and will use anything you say against you. When confronted by the police, DEMAND AN ATTORNEY – Call 631-450-2515.

Here, The Appellate Division, Second Department, examined one such case where the Defendant started to talk but demanded an attorney while being questioned by the police. The Defendant was accused of, inter alia, sexual abuse and rape. The complainant was his ex-girlfriend. Before being charged, the Defendant was brought into the police station for questioning. The Court noted that he was not free to leave and he was Mirandized: he understood he had the right to counsel but, nonetheless, continued on and cooperated with the police questioning. He was told of the allegations against him and he demanded counsel. The Court noted the following:

approximately 45 minutes into the interview, in response to a question by the investigator, the defendant stated, “I have nothing to defend myself besides my…attorney I’m going to have to call now if [the complainant is] really pursuing charges.” The investigator responded by stating that he would go check on how the complainant was doing and left the defendant alone in the room. The investigator returned to the room after approximately 10 minutes…Thereafter, approximately 15 minutes later, when the defendant and the investigator were discussing the condition of the complainant’s pajamas, the defendant indicated that the pajamas were in perfect condition. When the investigator asked, “What if they’re ripped?,” the defendant responded that, if so, then the complainant did it. He also said, “She’s trying to burn me [and] I need to see private counsel or something. I need an attorney, because this is ridiculous.” The interview was not stopped at that point, but, shortly thereafter, the investigator pointed out to the defendant that he had brought up “the attorney thing” and inquired as to the status of that request. The defendant replied, “I have to get [an attorney]. I have to call my Georgia guy and get one that’s New York barred up here, I guess.” The interview was not stopped at that point and continued, uninterrupted, until the defendant requested a bathroom break, which he was given…

Pp. 2 (external quotation marks omitted).

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In Chemung County, New York, ” Defendant was charged by indictment with assault in the second degree stemming from an incident in July 2012 where he allegedly ran over his girlfriend, Deborah Meyer, with a pickup truck.” Pp. 1.

At issue was the “County Court [ruling] that the witness could not speculate as to whom defendant had directed his comment, and the witness’s testimony in that regard was stricken from the record.” Pp. 2. Nonetheless, the People twice made improper references to the stricken testimony and twice those references went without objection from defense counsel or curative instructions from the court.” Id.

Rule: “To prevail on his ineffective assistance of counsel claim on the basis of [a] single failure to object, defendant must show both that the objection omitted by trial counsel is a winning argument…and that the objection was one that no reasonable defense lawyer, in the context of the trial, could have thought to be ‘not worth raising.'” People v. Brown, 17 NY3d 742, 743-744 (2011), quoting People v. Turner, 5 NY3d 476, 481 (2005)). “In our view, defendant has met his burden of demonstrating a lack of strategic or other legitimate reason for his defense lawyer’s failure to object.” Pp. 2 (citing People v. Rivera, 71 NY2d 705, 709 (1988)).

Under the circumstances, the Court found “that no reasonable defense lawyer could have thought that such an objection would not have been worth making,” and , therefore, this constituted ineffective assistance of counsel. Pp. 3  Judgment is reversed and the matter is remitted for a new trial.

The case is People v. Ramsey, 106652, NYLJ 1202744267116, at 1 (App. Div., 3rd, Decided December 3, 2015)

Instead of legislation, new regulations control problem driver designations and permanent license revocation in New York. The New York State Department of Motor Vehicles (DMV) has the ability to revoke a license and now utilizes a 25-year look back period, in some instances, to do so. Here, the “Petitioner was convicted in 2010 of driving while intoxicated, her third alcohol-related driving offense within a 10-year period. As a result of her conviction, her driver’s license was revoked for a minimum period of one year…” It is important to note that many New York drivers represented by a criminal defense attorney and, often ordinary people who handle their own traffic tickets, take plea deals prior to the promulgation of these regulations. The Third Department makes clear that this was the case with the Petitioner:

When petitioner applied fora new license in June 2012, respondent Department of Motor Vehicles…held the application in abeyance until later that year when emergency regulations were adopted concerning the review of applications for relicensing by persons with multiple alcohol- or drug-related driving offenses (see 15 NYCRR part 136). Once the new regulations were in place, DMV relied upon them to deny petitioner’s application because she was a person with “three or four alcohol- or drug-related driving convictions or incidents in any combination . . . and . . . one or more serious driving offenses within the 25[-]year look[-] back period” (15 NYCRR 136.5 [b] [*2][2])Specifically, during the look-back period, petitioner committed the “serious driving offense” of having been twice convicted of speeding violations “for which five or more points [were] assessed on [her] driving record” (15 NYCRR 136.5 [a] [2] [iii]).

(external quotation marks and footnote omitted) (internal citations and quotations preserved). While the Third Department has dealt with several challenges to the regulations (15 NYCRR 136) itself, this case deals with whether the speeding violations are considered a serious driving offense. Indeed, “[P]etitioner’s contention that 15 NYCRR 136.5 (a) (2) (iii) arbitrarily designates a ‘conviction of two or more violations for which five or more points are assessed on a violator’s driving record’ to be a serious driving offense.” more

The First Department reviewed a conviction and did not find harmless error to uphold the conviction. Here, the “Defendant’s right of confrontation was violated by testimonial hearsay evidence that went beyond the permissible scope of explanatory background material….Defendant was further deprived of his right to a fair trial by other portions of the prosecutor’s summation…The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial…[therefore,] [t[he totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict.”  People v DeJesus, 2015 NY Slip Op 08959 (1st Dep’t. Dec. 8, 2015). What happened here?

Among the problems stated by the First Department in reaching their decision, I focus on one in particular:

During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days (see People v Aponte, 2 NY3d 304, 308-309 [2004] [trial court improperly stated, among other things, that it was “nowhere near” the point when it would find a hung jury, where deliberation had lasted two days]). The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system (see People v Huarotte, 134 AD2d 166, 170-171 [1st Dept 1987]; see also Aponte, 2 NY3d at 308 [finding reversible error where, among other things,Allen charge “suggested that the jurors were failing in their duty”]). Pp. 1-2 (external quotation marks omitted and internal citations and quotations preserved).

In light of other criminal cases coming out of the Bronx (e.g. Kalief Browder), it is important to emphasize the neutral role the judge is to play while making sure the rights of the defendant are not violated by the prosecutor. In this case, the First Department concluded that “there is a significant probability that defendant would have been acquitted if not for the violation of his right of confrontation, the prosecutor’s improper statements in summation, and the court’s improper statements during deliberation.” Pp. 2 (citing People v Crimmins, 36 NY2d 230, 242 (1975)). The case is People v DeJesus, 2015 NY Slip Op 08959, (1st Dep’t. Dec. 8, 2015). A new trial was ordered. The case is People v DeJesus, 2015 NY Slip Op 08959.

In People v. Smith, 1566/12, NYLJ 1202743491014, at *1 (App. Div., 1st, Decided November 24, 2015), the Appellate Division, First Department found that

The court failed to meet its core responsibilities under People v. O’Rama (78 NY2d 270, 277 [1991]) to provide defense counsel with “meaningful notice” of a jury note and to provide the jury with a “meaningful response.” The note requested “copies of all the telephone conversations recorded and copies of all the video recordings” and “a copy of the transcript of the court proceedings that we are allowed to see.”

Under O’Rama, the defendant and counsel must have the opportunity to examine a jury note and provide a meaningful response. The First Department held that “[a]lthough not all the O’Rama violations are mode of proceedings errors, here, where the exact wording of the juror note was never read in the presence of counsel so an objection could be made, preservation is not required” Id. at P. 2-3 (citing People v. Nealon, __ NY3d__, 2015 NY Slip Op 07781 [2015])). This case was reported by the New York Law Journal.

In an article released by the New York Law Journal, Andrew K. reported some of the Bronx District Attorney’s ideas at changing what most call a broken system:

Clark said in a statement she would create an internal task force trained in the jail’s procedures and station a prosecutor at the facility. She also said she would ask the Office of Court Administration to put a judge there to speed up arraignments and other proceedings.

Outgoing DA Robert Johnson has been faulted for declining to write up new felony arrest complaints against inmates. Instead, he was concentrating on reducing a backlog that Bronx DA public information director Terry Raskyn on Monday said has been eliminated.

Clark said the office needed to work together with city agencies and that she would request “adequate funding” from the City Council for Rikers cases.

She called for bail reform for low-level, nonviolent offenders as well as improved information sharing with the city’s other district attorneys.

Clark said she would “demand and expect that my office will be prepared to achieve real-time prosecution on every case possible, and I look forward to working with all the stakeholders to bring safety and the rule of law to Rikers Island.”

These reforms are long overdue as the story of Kalief Browder has proliferated throughout New York:



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Detectives were on patrol in an unmarked vehicle in Jamaica when they observed the Defendant and another man walking down the street. The detectives observed the defendant make “constant adjustments to his waistband” just before stopping him. Pp. 2. The police stopped, identified themselves and the defendant took off running. While fleeing, the defendant threw a gun onto the street. The Appellate Division  noted that the police articulation of what occurred did “not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight from the police.” Pp. 2 (citations omitted). The defendant was charged, indicted and later convicted of criminal possession of a weapon in the second and third degree. As is often the case, an omnibus motion was filed and the suppression of the firearm was denied by the Supreme Court.

Law: “In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed” (People v. Holmes, 81 NY2d 1056, 1058). Pp. 2 “Reasonable suspicion has been defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand.” Pp. 2 (citing People v. Martinez, 80 NY2d 444, 448 (internal quotation marks and brackets omitted)). “A suspect’s [f]light alone…even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” People v. Holmes, 81 NY2d at 1058 (citations omitted); see People v. Sierra, 83 NY2d 928, 929; People v. Carmichael, 92 AD3d 687, 688). However, flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit (People v. Holmes, 81 NY2d at 1058; see People v. Sierra, 83 NY2d at 929-930; see also People v. Martinez, 80 NY2d at 447).

Here, as stated above, there were not any specific circumstances indicative of criminal activity that would allow the police to pursue the defendant. New York follows the seminal case of DeBour which set out four specific levels of police inquiry. Here, “[a]t most, the police had only a common-law right to inquire under the second level of DeBour. The defendant had a right to refuse to respond to the police inquiry (see People v. Stevenson, 7 AD3d at 821), and his flight when the officers approached him did not, under the circumstances of this case, create a reasonable suspicion of criminal activity.(see People v. May, 81 NY2d 725, 728; cf. People v. Martinez, 80 NY2d at 448).” Pp. 3 (internal citations preserved).

In sum, the Appellate Division holds that, because the officers lacked reasonable suspicion to pursue the defendant, the chase was unlawful and the disposal was a product (fruit of the poisonous tree) of the illegality. The Appellate Division dismisses the indictment.

The case is People v. Clermont, available here (NY Law Journal)

The Defendant was charged with, inter alia, unauthorized use of a vehicle in the third degree. It is alleged that the Defendant went into someone else’s car and stole their wallet… The People do not give us much more information other than that. The issue here becomes whether the charging instrument was facially sufficient or, put another way, whether the charging instrument alleges facts of an evidentiary nature supporting or tending to support the charge and provides reasonable cause to believe the defendant committed the offense charged. See CPL 100.15(3) and CPL 100.40(4). The Court notes that there are no allegations that the defendant took any action or interfered with the victim’s possession or use of the car. The instrument charging the defendant did not allege or demonstrate that the defendant took any sort of control over the vehicle but merely entered the vehicle to obtain the victim’s wallet.

New York Criminal Defense Attorneys, it is important to note that an argument concerning an accusatory instrument’s facial sufficiency is jurisdictional and must be reviewed even if the defendant failed to raise it in the Criminal Court. Pp. 2 (citing People v. Alejandro, 70 NY2d 133 (1987)). Thus, defendant’s claim was not forfeited upon his plea of guilty. Id. (citing People v. Dreyden, 15 NY3d 100, 103 (2010); People v. Konieczny, 2 NY3d 569, 573 (2004). Here the allegations presented in the charging instrument did not allege anything in regards to the defendant taking control, driving, moving or interfering with the use of the  victim’s car in any matter. Although the allegations are of a nature that the defendant entered the car, the charging instrument did not provide reasonable cause to believe that the defendant had engaged in the unauthorized use of a vehicle in the third degree, to which he plead guilty. “[T]he judgment of conviction is reversed, defendant’s guilty plea is vacated, the count of the accusatory instrument charging defendant with unauthorized use of a vehicle in the third degree is dismissed, the remaining counts of the instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.” Pp. 4.

The case is The People v. Gavrilov, 2013-135 K CR, NYLJ 1202741921574, at 1 (App. Tm., 2nd, Decided October 21, 2015) accessible at httpwww.newyorklawjournal.comid=1202741921574The-People-v-Gavrilov-2013135-K-CR#ixzz3r5owGKud

The Supreme Court reverses the Maryland Court of Appeals finding that James Kulbicki did not have effective assistance of counsel. Amongst legal scholars, the Strickland Standard is well known. Indeed, the Supreme Court “held that this right requires effective counsel in both state and federal prosecutions, even if the defendant is unable to afford counsel.” Pp. 1 (citing Gideon v. Wainwright, 372 U. S. 335, 344 (1963)). “Counsel is unconstitutionally ineffective if his performance is both deficient, meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” Pp. 1 (quoting Strickland v. Washington, 466 U. S. 668, 687 (1984)). Some legal scholars have gone so far as to compare this standard to the foggy mirror test: hold a mirror underneath the criminal defense lawyer’s face to see if the mirror fogs – as long as it fogs, there is effective assistance of counsel.

The Supreme Court said that the Maryland Court of Appeals applied this standard “in name only” (pp. 1), finding an expert report favorable to the defendant unlikely to be found at the time and/or impact the finding of guilty. Here the expert testimony elicited at trial compared the lead in the bullet within the victim’s skull and the lead of the remaining bullets the defendant possessed and found it likely to be the same lead. It was Comparative Bullet Lead Analysis (“CBLA”) which, although accepted at the time, was contradicted by an report existing at the time written by Agent Peele. Like any good science, Comparative Bullet Lead Analysis has been criticized and fallen out of favor by current scientific standards: Remember, the expert at Kulbicki’s trial indicated that it was likely that the very same lead found in the victim’s brain that was also found in a box of bullets that Kulbicki purchased. Noting the errors in this science, “[o]ne of the many findings of the report was that the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box.” Pp. 2. The Maryland Court of Appeals, indicating that the testimony is at significant odds with what is taken as knowledge today, looked at this faulty assumption as a good reason to overturn this conviction.

The Supreme Court reverses, finding that “The Court of Appeals offered no support for its conclusion that Kulbicki’s defense attorneys were constitutionally required to predict the demise of CBLA.” “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Pp. 3. The Supreme Court critiques the Maryland Court of Appeals for second-guessing the trial strategy in light of what was a well-accepted science in the 1990s but not, as the Supreme Court indicated, an accepted science in 2003. “Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis.” Pp. 4. “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial, the effect of the judgment below is to demand that lawyers go ‘looking for a needle in a haystack,’ even when they have ‘reason to doubt there is any needle there.’” Pp. 4 (quoting Rompilla v. Beard, 545 U. S. 374, 389 (2005)).

The Supreme Court again asserts that the ineffective assistance of counsel standard is not perfect advocacy but reasonable competence. “Kulbicki’s trial counsel did not provide deficient performance when they failed to uncover the 1991 report and to use the report’s so-called methodological flaw against Peele on cross-examination.” Pp. 5. Reversed.

The case is Maryland v. James Kulbicki, 577 U.S. ___ (Oct. 5, 2015).

Long Island Town and Village Code: Have you ever been charged with violating the “code”? Has code enforcement tried to enter your home? You can and should refuse entry without a warrant. Throughout Long Island, code enforcement by incorporated villages and towns often result in (some very valid) criminal charges for violating the “code.” This can be anything from converting a garage to living space or not mowing the lawn. Here, the defendant was accused an convicted of “violating section 275-5 of the Code of the Town of Southold, in that he had constructed “stairs within 100′ of the bluff line without a permit from the Board of Trustees.”

The case is The People v. Martino, 2013-2134 S CR, NYLJ 1202741291489, at *1 (App. Tm., 2nd, Decided September 18, 2015) and Section 275-5 (A) of the Code of the Town of Southold provides that “[n]otwithstanding any prior course of conduct or permission granted, no person shall conduct operations on any area within Trustee jurisdiction (§275-3C) [sic] without first obtaining a written permit therefor issued by the Trustees as hereinafter provided and only while such permit remains in effect.”

In specifying the provisions which the Defendant here supposedly violated, Section 275-3 (C) of the Code of the Town of Southold provides that “Land within 100 feet of the [bluff]” is protected under Section 275-5(A). The Town of Southhold brought these charges yet never determined whether the stairs that Martino erected were actually within 100 feet of a bluff. Defendant went to trial where a judge sat in judgment of the law and the facts. After being convicted, the defendant put several arguments forward on appeal. The Appellate Court, however, evaluated the evidence poised against Martino and determined that it was not legally insufficient:

The testimony of a bay constable was aided by the admission into evidence of three photographs of the stairs in question. However, the bay constable never testified where the bluff line was on the photographs. He never testified that the stairs were on land within 100 feet of a bluff. The bay constable merely “guess[ed]” that the stairs were within the jurisdiction of the Board of Trustees. The Chairman of the Town of Southold Board of Trustees, who was a witness for the prosecution, never testified that the incline arising from the beach on defendant’s property on which the stairs were located was steep enough to constitute a bluff. His testimony as to where the bluff line was on defendant’s property was based on an approximation. While he testified that “[w]etland jurisdiction is one hundred feet of vegetation wetland and fresh water wetland is also one hundred [feet] from the wetlands,” he never specifically testified that the stairs were within 100 feet of a bluff. The photographs merely show stairs going from the rear of a property to the beach and the sound. They do not contain any measurements. Thus, defendant’s conviction of violating Section 275-5 of the Code of the Town of Southhold was based on legally insufficient evidence.

Conviction overturned: the appeal was successful. This is an important reversal because of the number of these criminal charges brought which are sometimes without merit and the result if challenged. If the Defendant had merely plead guilt, it is likely the Defendant would have to remove these stairs and paid a hefty fee and/or fine in doing so. By hiring an attorney and fighting the charges, Martino keeps the stairs and does not have to pay the $4,000 fine….

The Defendant here was charged with murder in the second degree. After he came upon a man hitting his brother in the head with a hammer, he stabbed what became the victim. The Defendant testified that he was in his own home when his ex-wife told him that someone was beating his brother up with a hammer down the block. Defendant testified that he ran onto the victim’s porch, tried to break up the fight, and, in the scurry, stabbed the victim in the chest with a knife.

Procedural History: “The jury acquitted defendant of second degree murder, but found him guilty of manslaughter in the first degree. Supreme Court subsequently sentenced defendant to 25 years in prison, to be followed by five years of postrelease supervision. The Appellate Division unanimously affirmed the judgment of conviction (114 AD3d 1134 [4th Dept 2014]), and a Judge of this Court granted leave to appeal (23 NY3d 1044 [2014]).” Pp. 6.

At issue here was the jury instruction of Justification and whether the initial aggressor exception to the justification defense misstates the applicable law where defendant intervened in an already existing fight. Indeed:

At the charge conference, Supreme Court indicated that it would, at defendant’s request, give a charge on the justification defense. Defendant then specifically requested that the court read the standard criminal jury instruction on justification, but exclude the portion that addressed the initial aggressor rule, because defendant did not “stand in the shoes of anybody initially involved in the fight.” Alternatively, defendant argued that, if an initial aggressor charge “were to be used at all[, it] should indicate the first person to use deadly force, not offensive force.” In contrast, the People asserted that there was “a fair view of the evidence to show that…defendant [was] acting in concert with” his brother and girlfriend, which “makes him accountable as an initial aggressor.”

 more

On October 23, 2015, the New York Law Journal (Joel Stashenko) published the article “Woman’s Conviction for Conduct Affecting Fetus Is Dismissed” Arguably, the Suffolk County District Attorney’s Office should not have brought the case and this woman should not have been convicted of manslaughter for the death of her 6-day-old baby from in-utero injuries sustained in a car accident that she caused by being under the influence.

The conviction of Jennifer Jorgensen for a May 2008 accident in Suffolk County where authorities say her vehicle crossed the center line of a busy road and smashed head-on into an oncoming vehicle, killing its occupants. Jorgensen, who police said was incapacitated by alcohol and/or prescription medications, was 34 weeks pregnant at the time. Jorgenson, not wearing a seatbelt at the time, injured her unborn baby when she struck the steering column in the crash and was delivered by cesarian section.

“Thirteen months [after her child’s death], defendant [(Jorgensen)] was indicted on three counts of manslaughter in the second degree (Penal Law §125.15 [1]), one count of aggravated vehicular homicide (Penal Law §125.14), and one count of operating a motor vehicle while under the combined influence of alcohol or drugs (Vehicle & Traffic Law §1192 [4-a]). After the first jury failed to reach a unanimous verdict, the parties proceeded to a second trial on all counts.” People v. Jorgensen, No. 179, NYLJ 1202740469239, at *2 (Ct. of App., Decided October 22, 2015)

The issue the Court of Appeals reached “is whether a woman can be convicted of manslaughter for reckless conduct that she engaged in while pregnant that caused injury to the fetus in utero where the child was born alive but died as a result of that injury days later.” Jorgensen, at *3.

The Court made clear that “[t]he imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor.” Jorgensen, at *7 The Court of Appeals held “that it is evident from the statutory scheme that the legislature, in enacting Penal Law §125.05 (1) and §125.15 (1), did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.” Jorgensen, at *3.

The Court of Appeals reversed the Second Department and dismissed the remaining indictment.

Dissenting, Justice Fahey indicated that “[w]here, as here, the baby-victim is born alive but subsequently dies, the Penal Law allows for the conviction of a defendant-mother of manslaughter in the second degree where the acts causing the baby’s death occurred before that infant was born….” That seemed to be the difference here. If Jorgensen did not consent to having the C-Section, this probably would have never become an issue. Nonetheless, as the prosecutor argued it, J. Fahey addressed it.

The Defendant was sentenced in April, 2012. As part of a plea agreement, the Defendant was sentenced to a seventy-eight month term of imprisonment. The instant matter is to decide the defendant’s motion to reduce the sentence.

History: “Pursuant to the United States Sentencing Guidelines Manual (“the Guidelines”) effective at the time of defendant’s sentencing, defendant’s base offense level was twenty-six (26). See U.S.S.G. §2D1.1. Four (4) points were added to the base offense level to determine the combined offense level pursuant to §3D1.4(a) of the Guidelines, but the combined offense level was reduced by three (3) levels based upon defendant’s acceptance of responsibility pursuant to §3E1.1 of the Guidelines, thereby placing defendant at a total offense level of twenty-seven (27) at the time of his sentencing. Since defendant’s criminal history placed him in Criminal History Category II, the then-applicable advisory Guidelines range was a term of imprisonment of between seventy-eight (78) to ninety-seven (97) months, the range stipulated in the plea agreement.” Pp. 2-3.

The defendant moves to reduce his sentence pursuant to 18 U.S.C. §3582(c)(2), which provides, in relevant part:

“The court may not modify a term of imprisonment once it has been imposed except that — *** in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant * * *, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Pp. 2-3.

Law: The Supreme Court has held that “[b]y its terms, §3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the ‘modif[ication of] a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the [Sentencing] Commission.” Dillon v. United States, 560 U.S. 817, 130 S. Ct. 2683, 2690, 177 L. Ed. 2d 271 (2010); see also U.S. v. Johnson, 732 F.3d 109, 116 (2d Cir. 2013) (holding that a Section 3582(c)(2) proceeding is “neither a sentencing nor a resentencing.”) Since Section 3582(c)(2) authorizes “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding,” Dillon, 560 U.S. 817, 130 S. Ct. at 1391, the sentencing court is not “free to address * * * arguments regarding [other] errors at [the defendant’s] original, now final sentencing.” U.S. v. Mock, 612 F.3d 133, 134-35 (2d Cir. 2010).

“The Supreme Court has set forth a ‘two-step inquiry’ for resolving motions pursuant to §3582(c)(2) for a sentence reduction.” U.S. v. Christie, 736 F.3d 191, 194 (2d Cir. 2013) (citing Dillon, 560 U.S. 817, 130 S. Ct. at 2683); accord U.S. v. Bethea, 735 F.3d 86, 87 (2d Cir. 2013). First, the sentencing court must “determine that a reduction is consistent with §1B1.10 * * * by determin[ing] the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized.” Dillon, 560 U.S. 817, 130 S. Ct. at 2691. “Specifically, §1B1.10 requires the court to begin by ‘determin[ing] the amended guideline range that would have been applicable to the defendant’ had the relevant amendment been in effect at the time of the initial sentencing.” Id.

The defendant is entitled, and the government agrees, to a reduced sentence. While “[t]he government does not dispute that defendant is eligible for a limited sentence reduction under 18 U.S.C. §3582(c)(2), [it]…argues, in essence, that no reduction of defendant’s sentence is warranted in this case.” Pp. 2. “As relevant here, Amendment 782 to the Guidelines, effective November 1, 2014, modified §2D1.1(c) of the Guidelines by reducing the offense levels in the Drug Quantity Table by two (2) levels and, thereby, lowering the advisory Guidelines sentencing range for certain categories of drug-related offenses.” Pp. 4. This reduction in the sentencing range would impact the Defendant’s sentence but it does not bind a judge to act accordingly.

Indeed, “[a] retroactive amendment to the Guidelines merely authorizes a reduction in sentence; it does not require one.” Wilson, 716 F.3d at 52 (quotations and citation omitted); see also U.S. v. Rios, 765 F.3d 133, 137 (2d Cir. 2014), cert. denied by Bautista v. United States, — S. Ct. —, 2015 WL 2256183 (Oct. 5, 2015) (reviewing the district court’s denial of a motion to reduce the defendant’s sentence under §3582(c)(2) for abuse of discretion). See Pp. 5. The Court noted, as the Defendant’s motion made clear, that the Defendant is entitled to a sentence reduction. Instead of the over seventy months the defendant was sentenced, the Defendant would be entitled to a sentence reduction of as much as fifteen months. The Court agrees with the government’s argument, however, that the relevant factors at the time of sentencing have not changed. Because there is no change in circumstances, the Court finds that no change in sentence is warranted even though the sentencing guidelines changed.

 

Conclusion: Sentence upheld; motion denied.

 

The Case is USA v. Johnson, 12-CR-261, NYLJ 1202739531148, at 1 (EDNY, Decided October 8, 2015)

Issue:

In this case “[i]t is…undisputed that the remaining eleven months that the motion was pending were not excluded. Accordingly, the Act’s 70‐day indictment‐to‐trial period (commonly referred to as the “speedy trial clock”) was exceeded by approximately nine months.” Bert, at P. 8. “Accordingly, neither party contests that a violation of the Speedy Trial Act occurred. Nor do they question the statute’s unambiguous mandate that the court was required to dismiss the indictment upon Bert’s motion. The only question before us, therefore, is whether the district court abused its discretion in permitting Bert’s reprosecution by dismissing the indictment without prejudice.” P. 8-9.

Law:

“The Speedy Trial Act mandates that a criminal defendant must be brought to trial within 70 days of the filing of the indictment or the defendant’s initial appearance, whichever occurs later. See 18 U.S.C. § 3161(c)(1). If that deadline is not met, the Act provides that the indictment “shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2). The Act excludes delays due to certain enumerated events from the 70‐day indictment‐to‐trial period. See 18 U.S.C. § 3161(h).” P. 7

“It is well established that “Congress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation.” United States v. Taylor, 487 U.S. 326, 334 (1988); accord United States v. Caparella, 716 F.2d 976, 980 (2d Cir. 1983). Rather, “[t]he determination of whether to dismiss an indictment with or without prejudice is committed to the discretion of the district court.” United States v. Wilson, 11 F.3d 346, 352 (2d Cir. 1993).” P. 9. In making this consideration the Court should consider “the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” United States v. Bert, 13-2328-cr, at * 10 (Sept. 10, 2015)(quoting 18 U.S.C. § 3162(a)(2)).

The Supreme Court instructed that, in the absence of prejudice or significant delay, courts should only preclude reprosecution of a serious crime upon a showing of “something more than an isolated unwitting violation,” such as a finding of “bad faith” or a “pattern of neglect.” Taylor, 487 U.S. at 339. But where the delay is indisputably  grave and not a result of the defendant’s own conduct, Taylor, 487 U.S. at 343, dismissal with prejudice may be appropriate without such a finding, see United States v. Russo, 741 F.2d 1264, 1268 (11th Cir. 1984) (“[W]here the violation is substantial, a negligent failure to comply with the Act will not suffice to justify retrial.”). As the Supreme Court has explained in the context of a Sixth Amendment speedy trial challenge, “[a]lthough negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Doggett v. United States, 505 U.S. 647, 657 (1992). “‘The Act controls the conduct of the parties and the court itself during criminal pretrial proceedings. Not only must the court police the behavior of the prosecutor and the defense counsel, it must also police itself.’” Stayton, 791 F.2d at 20 (quoting Pringle, 751 F.2d at 429).

Procedural History:

 

The District Court committed error in that “first, that the absence of bad faith, intentional delay, or some other form of heightened scienter is dispositive of this statutory factor; second, that a delay attributable to the court and not to the government tips this factor in favor of dismissal without prejudice. Both of these premises are contrary to governing precedent.” P. 16-17. The Second Circuit held that “[a] rule that limited the sanction of dismissal with prejudice exclusively to cases involving bad faith would contravene the well‐established principle that “[t]he Speedy Trial Act does not indicate a preference as between dismissals with and dismissals without prejudice.” Giambrone, 920 F.2d at 180 (citing Taylor, 487 U.S. at 334).” P. 18. Indeed, “District courts must hold themselves accountable for ensuring their own compliance with the Speedy Trial Act’s requirements. A district court may not merely assume responsibility for a speedy trial violation, deny an improper motive, and weigh this statutory factor in favor of dismissal without prejudice without offering further explanation.” Bert, at P. 19. In “the seriousness of the violation was ‘slighted’ and not ‘properly considered,’ Taylor, 487 U.S. at 337, and we proceed to a fuller examination.” P. 14. “Bert’s speedy trial clock had been expired for 266 days (almost 9 months). It is beyond cavil that this delay—which amounts to almost nine times the period of time automatically excluded for the resolution of such motions, see 18 U.S.C. § 3161(h)(1)(H), and almost four times the length of the speedy trial clock itself, see 18 U.S.C. § 3161(c)(1)—is serious” Bert, at P. 14

Conclusion: “Given the extended administrative neglect by the court and the government in allowing the case to stagnate for almost a year while Bert was incarcerated, we conclude that the government’s interest in administering justice by prosecuting Bert’s firearms offenses is outweighed by the impact that permitting reprosecution would have on the administration of justice and of the Speedy Trial Act.” P. 31

Dissent by Hon. Dennis Jacobs

Finding that “The only issue presented is whether the district court had discretion to dismiss this case under the Speedy Trial Act (as it did) without prejudice,” Judge Jacobs would have joined the majority. “The delay was occasioned by a one‐year interval in which the district court considered a suppression motion that was complicated, ramified, and virtually outcome‐determinative.”

Judge Jacobs cites several principles of which militate against dismissal with prejudice:

(1) As between dismissal with prejudice and without, “neither remedy [is to be] given priority,” United States v. Taylor, 487 U.S. 326, 335 (1988);

(2) “[d]ismissal without prejudice is not a toothless sanction,” id. at 342; and

(3) “dismissal of a criminal indictment is a drastic remedy which should not be lightly considered,” United States v. Fox, 788 F.2d 905, 909 (2d Cir. 1986).

Judge Jacobs states that “I agree with the majority that the Act serves important ends and must be enforced, and that it is integral to the administration of justice. But the majority implicitly assumes that the Act is disserved or impaired unless dismissal is with prejudice; and that assumption violates the background principles that dismissal without prejudice is not toothless, that the Act embodies no preference as to whether dismissal should be with prejudice or without, and that the choice is confided to the discretion of the district court.” In sum, he does not agree with the remedy the Second Circuit chose because “the delay [of the District Court] was an isolated instance; there was no bad faith or pattern of delay or misconduct by the prosecutors, or by the judge, or by the court as a whole; and, under the circumstances, no incentive for abuse can be identified, let alone be said to arise…” and, accordingly, he felt that the District Court’s judgment should be affirmed.

The case is United States v. Bert, 13-2328-cr (Sept. 10, 2015).

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Scott Lewis appeals from a murder conviction, alleging constitutional violations in the form of Brady v. Maryland violations. This conviction from 1990 relied almost entirely on the testimony of Ovil Ruiz, a man who repeatedly denied having any knowledge  of the murder that led to this conviction and only testified that he did “after a police detective promised to let Ruiz go if he gave a statement in which he admitted to being the getaway driver and incriminated Lewis and another individual, Stefon Morant.” Pp. 2. The United States District Court for the District of Connecticut granted Lewis’s habeas petition on the grounds of a Brady violation. The Second Circuit affirms.

Both Scott Lewis and Stefon Morant were tried for murdering Ricardo Turner and Lamonth Fields. Both were found guilty. At trial, there was no eyewitness testimony or forensic evidence, merely the testimony of Ovil Ruiz. Ruiz made up a story. May 10, 1995, a jury convicted Lewis on two counts of murder and two counts of felony murder, one count as to each victim. He was sentenced (T1) to 120 years imprisonment. On direct appeal, the Supreme Court of Connecticut affirmed Lewis’s convictions (T2) but vacated the his felony murder convictions on double jeopardy grounds.

Had it not been for Morant’s motion for a new trial, the following information would have never been divulged: The two police detectives who questioned Ruiz on the night he implicated Lewis provided the circumstances of which Ruiz inculpated Lewis at the Police station back in 1991: After saying he knew nothing of the two murders, detective Raucci begin telling Ruiz the facts of the murder, where they occurred, the scenario in which the murderers escaped with the guns in a gym bag at which point he was interrupted by detective Sweeny. Detective Sweeny told Raucci that his interrogation approach was inappropriate at which point the two detectives returned to the interrogation room where Ruiz said he wanted to inculpate Morant and Lewis. Detective Sweeny intervened again but was “pulled away on another matter…” Pp. 8. When Sweeny returned, he was concerned about the significant change in testimony but nonetheless, the statement was made and Ruiz was the catalyst to place these two men in jail. Sweeny subsequently retired and took a position volunteering in the United Nations, Bosnia.

The detective, Raucci was later found to be linked with New Haven drug trade, he resigned from the police department because of misconduct, was later arrested for domestic-violence, charged with larceny and ultimately arrested by the FBI after a four-hour stand-off in New Mexico. Sweeny came forward to disclose what happened.

January 9, 2001 Lewis files a pro se habeas petition raising new evidence regarding Ruiz’s perjury, Brady violations and newly discovered alibi evidence. The petition was denied (T3) by the Connecticut superior court. The Connecticut court found that such information should have been discovered, inter alia, by the due diligence of defense counsel. Lewis appealed (T4) to the Connecticut Supreme Court for certification to an appellate court. He filed an uncertified appeal and provided the Appellate Court with, amongst other things, transcripts from the criminal trial, probably cause hearing and detective Sweeny’s testimony at the Morant new trial hearing. His appeal was denied on the grounds that “he failed to include the transcript from his state habeas trial before Judge Zoarski and thus failed to provide an adequate record for review.” Pp. 12 (citing Lewis v. Comm’r of Corr., 73 Conn. App. 597, 599 (2002)). Lewis than sought review (T5) from the Connecticut Supreme Court through a petition for certification which was denied without discussion…

Over a decade later, Lewis filed a petition for habeas relief in the District of Connecticut arguing that the State denied his right to a fair trial and violated due process when it withheld Brady material during his trial. On December 16, 2013, over twenty years later, the petition was granted and the Court concluded that Lewis was entitled to federal habeas relief. After the order of release, the state timely appealed (T6).

The Second Circuit reviewed the state’s arguments – that (1) Lewis procedurally defaulted on his Brady claim at the state level and (2) that he did the state “did not contravene clearly established federal law and was not based on an unreasonable factual determination.” Pp. 15. Rejecting both of the state’s arguments, the Second Circuit focused on the second argument made by the state and then reviewed the Pro Se applications by Lewis.

Rule: “A federal court may only grant a petitioner relief with respect to any claim that was adjudicated on the merits in State court proceedings if the State adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)‐(2).”

Pp. 15, n. 5.

Specifically, the Second Circuit find that the State Court’s decision requiring the defendant to exercise due diligence to obtain exculpatory evidence is wrong and the state habeas decision based its decision on “unreasonable findings of fact when it ignored key aspects of the record.” Pp. 16. The court found no independent state grounds of which the decision should not be reviewed and the alleged incomplete record was containing a transcript which the Second Circuit found not to be vital pursuant to that Connecticut rule.

Throwing another monkey wrench in the mix, Connecticut faults Lewis with not following the certification requirement – that being certifying that his appeal was not frivolous. The Second Circuit rejects this argument, holding that “the State does not identify any Connecticut authority for a certification-briefing requirement…Connecticut courts do not regularly enforce this procedure.” Pp. 22 (citing Hankerson v. Comm. of Corr., 150 Conn. App. 362, 368 (2014)). Examining the standards set forth by the Lozada case, the Second Circuit found that Lewis complied with all the requirements of Connecticut law to bring his appeal and “[a]t the very least…demonstrated that his case presented issues that were debatable amongst jurists of reason.” Pp. 23.

Reviewing the petition to the Federal District Court itself, the court finds no clear error in the habeas corpus petition. The state court (because the appellate court summarily rejected it) provided the only review on the merits – in reviewing the above rule (28 U.S.C. § 2254), the Court finds that the state decision contravened clearly established law and was based on an unreasonable determination of the facts. The Second Circuit observes, clearly in contravention to Federal law, that the State Court imposed a duty on Lewis to find out exculpatory information, Brady material. Further, the Second Circuit states that the Respondents’ brief “distorts the state habeas court’s decision” (Pp. 29) in claiming that Lewis did not exercise due diligence in finding Brady material.

“The State’s failure to disclose exculpatory evidence, including impeachment evidence, in its possession constitutes a Brady violation, irrespective of the good faith or bad faith of the prosecution, Brady, 373 U.S. at 87, and regardless of whether the information is known only by the police and not the prosecutor.” Pp. 31 (citing Kyles v. Whitley, 514 U.S. 419, 437‐38 (1995); see also United States v. Triumph Capital Grp., Inc., 544 F.3d 149, 161 (2d Cir. 2008)).

Brady: [There are three components of a Brady violation: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Boyette, 246 F.3d at 89 (quoting Strickler v. Greene, 527 U.S. 263, 281‐82 (1999)).]

If the defense counsel had this information, there would have been meaningful cross-examination of Ruiz, the state’s failure to disclose it, obviously, hindered the defense from learning of it and the evidence was material. Being a probable different result, the Court finds that this pressuring of a witness very well resulted in Lewis’s finding of guilt. Information about the sole witness to a murder without any other corroborating evidence would very likely result in a different outcome. The Second Circuit notes that detective “Sweeny provided credible evidence that Ruiz simply parroted information supplied by an unscrupulous police officer.” Pp. 36.

Conclusion: The state’s failure to disclose this information prejudiced Lewis and the United States District Court is upheld.

Michael Grabell is a journalist employed by ProPublica who sued NYPD because NYPD failed to respond to his FOIL request. The NYPD unlawfully withheld certain documents not properly exempt from disclosure under the Freedom of Information Law (FOIL) (Public Officers Law (POL) §85 et seq).

Mr. Grabell sought information relating to NYPD’s purchase and use of a police vehicle known as the Z-backscatter van (Van). “The Van(s) is an unmarked vehicle that contains an x-ray device that can detect drugs, certain bomb-making equipment, and other organic and inorganic matter in vehicles or buildings. The radiation that the device emits does not penetrate its target, but reflects back a visual image.”

Mr. Grabell’s request sought information that concerned the public’s health and safety:

“Petitioner seeks certain records as they would “reveal whether the NYPD has taken steps necessary to protect drivers, passengers and pedestrians from exposure to potentially harmful ionizing radiation”. ¶14, Affidavit in Support. Petitioner states in his affidavit, and respondent does not dispute, that: backscatter technology, previously deployed in European Union airports, was banned in 2011, because of health concerns; an internal presentation from American Science & Engineering, Inc., the company that manufactures the Van(s), determined that the Vans deliver a radiation dose 40 percent larger than that delivered by a backscatter airport scanner; bystanders present when the Van(s) is in use are exposed to the radiation that the Van(s) emits; and the Transportation Security Administration recently removed all of its backscatter x-ray body scanners from airports in the United States, because the devices failed to comply with privacy requirements established by Congress. Petitioner also states, without dispute, that each of the Vans costs between $729,000 and $825,000. ¶9, Grabell Affidavit in Support, dated April 8, 2013 (“Affidavit in Support”). Moreover, petitioner maintains, and it is not disputed by the NYPD, that “[t]here may be significant health risks associated with the use of backscatter x-ray devices [as] these machines use ionizing radiation, a type of radiation long known to mutate DNA and cause cancer”. ¶5, Affidavit in Support.”

Mr. Grabell made a request on February 15, 2012 which was denied on April 18, 2012 on the basis of POL §87 (2) (e) (iv) “in that such law enforcement records, if disclosed, would reveal criminal investigative techniques or procedures.” Mr. Grabell appealed on May 15, 2012 pointing out, among other things, that “[w]hile portions of [the records requested] may be withheld or redacted under the statutes [cited], the vast majority of the records are public and can be segregated for release.”

Analysis: The Court found that “The NYPD does not defend its denial of petitioner’s appeal on the basis of POL §87 (2) (g)(intraagency exemption), either in its memorandum of law, or in the affidavit of Richard Daddario, Deputy Commissioner of Counterterrorism. Accordingly, the court deems the NYPD to have abandoned that exemption as a ground for withholding the documents responsive to petitioner’s FOIL request. In any event, petitioner argues that POL §87 (2) (g) applies neither to instructions to staff that affect the public, nor to final policy decisions”

After a conference with the court, the FOIL requests were limited to these six (6) requests:

[1] Summary reports or after-action reports of past deployments of the vans that are not related to any ongoing investigation.

[2] The Department’s policies and procedures regarding the Z-backscatter van as well as any training materials.

[3] The final policy decision or interpretation of the law or any legal opinion as to when and in what situations the Z-backscatter van can and cannot be used.

[4] Records sufficient to disclose both the total aggregate cost of the Z Backscatter Vans purchased by or for the NYPD and the total number of vans purchased.

[5] Any tests or reports regarding the radiation dose or other health and safety effects of the Zbackscatter van.

[6] NYPD’s final policy governing retention and storage of data generated by the Z Backscatter Vans, and other documents sufficient to disclose NYPD’s policies regarding the length of time images are stored or maintained, the process by which images are deleted or destroyed, the number and type of individuals permitted to access stored images, and any restrictions NYPD imposes on the use of the images.

“Despite petitioner’s new sharply narrowed requests for documents, NYPD maintains its original objections to their disclosure.”

Law:

[“The premise of FOIL is `that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.'” Matter of Newsday, Inc. v. State Dept. of Transp., 5 NY3d 84, 88 (2005), quoting Matter of Fink v. Lefkowitz, 47 NY2d 567, 571 (1979). The purpose of requiring disclosure of governmental records is “to assist the public in formulating `intelligent informed choices with respect to both the direction and scope of governmental activities.'” Matter of New York State United Teachers v. Brighter Choice Charter School, 15 NY3d 560, 564 (2010), quoting Matter of Fink, 47 NY2d at 571. FOIL requires state and municipal agencies to provide the public with all records pertaining to the agencies’ operations, that are not specifically exempted from disclosure. Matter of Whitfield v. Bailey, 80 AD3d 417, 418-419 (1st Dept 2011). The statutory exemptions to disclosure are to be “narrowly interpreted so that the public is granted maximum access to the records of government” (Matter of Data Tree, LLC v. Romaine, 9 NY3d 454, 462 [2007]; see also Matter of Markovitz v. Serio, 11 NY3d 43, 51 [2008]). “[T]he burden of proof rests solely with the [agency] to justify the denial of access to the requested records.” Data Tree, LLC, 9 NY3d at 463. In fact, where only a portion of a given document is properly exempt, the agency is nonetheless obligated to produce a redacted version that discloses all the non-exempt information. Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals v. Mills, Inc., 18 NY3d 42, 45-46 (2011); Data Tree, LLC, 9 NY3d at 464. Contrary to respondent’s argument that this court should defer to the NYPD’s expert knowledge, it is settled law that a court reviewing an agency’s failure to disclose requested records owes no deference to the agency’s decision, but must “presume that all records of a public agency are open to public inspection…, and must require the agency to bear the burden of showing that the records fall squarely within an exemption to disclosure.” New York Committee for Occupational Health & Safety v. Bloomberg, 72 AD3d 153, 158 (1st Dept 2010); see also POL §89 (4)(b); (5) (e); Matter of Markowitz v. Serio, 11 NY3d 43, 50-51 (2008); Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d 562, 566 (1986). Such a showing must be made by “articulating a particularized and specific justification for denying access.” Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d 562, 566 (1986); see also Matter of New York State Pistol & Rifle Assn. v. Kelly, 55 AD3d 222, 225 (1st Dept 2008).

Moreover, as in the recent case of Hashmi v. New York City Police Dept (___ Misc 3d ___, 2014 NY Slip Op 24357 [Sup Court, NY County 2014]), this court will not adopt the federal standard as to Freedom of Information requests, as such is not contemplated by this state’s current FOIL statute. It is the province of the legislature to change the applicable statute. Thus, as explained above, it is well settled that the starting point for any FOIL inquiry is that the public has the right to know and it is the burden of the government to justify the denial of access. See Data Tree, LLC, 9 NY2d at 463. Respondent NYPD has articulated only two (2) reasons for exemption: (1) the “law enforcement/investigatory exemption” (POL §87(2)(e)); and (2) the “endangerment of life and safety of any person exemption” (POL §87(2)(f)). Both of such exemptions are to be “narrowly interpreted”. See Data Tree, LLC v. Romaine, 9 NY3d at 462.]

Analysis: The Court analyzes certain exceptions to FOIL (POL 87(2)(e) and 87(2)(e)(iv) and either forced NYPD to answer or accepted NYPD’s response. In response to the request of where these vans were deployed the Court held that “a record of where they have been deployed does not, without more, necessarily allow an inference of locations in which they will not be deployed.” Indeed, “The Court does not allow a blanket non-disclosure for manuals relating to the Vans but instead ‘the NYPD must redact the documents that are responsive to petitioner’s second request, withholding such portions of them as come plainly within POL §87 (2) (e) (iv), and disclose the remainder.’ ” The Court found that the third request fell within the ambit of POL 87(2)(e)(iv), the fourth request is already, basically, public information and the fifth request must be produced.

As to the Sixth request: “In sum, with the exceptions noted above, Mr. Daddario’s affidavit consists largely of repeated, conclusory statements that the disclosure of any records pertaining to the Van(s) would allow would-be criminals to circumvent the Van(s)’s potential effectiveness. However, the standard to exempt a document from disclosure is quite high in that, a party seeking to withhold documents that are sought pursuant to FOIL, must tender a “factual basis” for claiming that the documents come within one or another exemption. Church of Scientology of N.Y. v. State of New York, 46 NY2d 906, 908 (1979). Further, it is well settled that it is the government’s burden to justify the denial of access. See Data Tree, LLC, 9 NY 2d at 463.”

The Court Awarded Attorneys Fees [POL §89 (c) provides that a court reviewing an agency’s failure to disclose documents responsive to a FOIL request may assess attorney’s fees and other litigation costs against the agency when the petitioner “substantially prevailed,” and “when the agency had no reasonable basis for denying access….”] The reason being that, “[h]ere, the NYPD denied petitioner’s request in toto, and inasmuch as the court is ordering the NYPD to provide petitioner with at least redacted versions of documents responsive to four of the five requests in connection with which the NYPD acknowledges that it has documents, petitioner has ‘substantially prevailed.’ “

Further, “[w]hile the NYPD may have had a reasonable basis for withholding some of the documents that are responsive to petitioner’s first five requests, it had no reasonable basis for withholding them all, or for failing to provide some of them in redacted form. Most egregiously, perhaps, it had no reasonable basis, or at least it has not articulated any such basis, for withholding documents responsive to petitioner’s fifth request for documents”.

The Court concluded that “It is noted that, significantly, respondent NYPD has not disputed the potential health risks inherent in the use of backscatter x-ray technology. While this court is cognizant and sensitive to concerns about terrorism, being located less than a mile from the 9-11 site, and having seen first-hand the effects of terrorist destruction, nonetheless, the hallmark of our great nation is that it is a democracy, with a transparent government.”

The public has the right to know.

The Case is In re Grabell v. New York City Police Department, 100580/13, NYLJ 1202714901334, at *1 (Sup., NY, Decided December 9, 2014).

In October 2007, the claimant was put in jail as a result of pending Criminal charges. In March 2009, he pled guilty and was released from custody pending sentencing. “On May 4, 2009, he was sentenced to a prison term of 1½ years to be followed by postrelease supervision of 1½ years. Claimant had served his prison sentence in full at that point, but was returned to custody for processing upon the understanding that he would be released the next day. Notwithstanding those assurances, he was held by the New York City Department of Corrections for several days and, on May 12, 2009, was transferred to the custody of the New York State Department of Corrections and Community Supervision (hereinafter DOCCS). DOCCS officials quickly realized that claimant had reached the maximum expiration date of his prison sentence, but failed to release him until June 3, 2009.” The reason being was so that DOCCS “could finalize the conditions of his postrelease supervision.” This supposed reason, is why the claimant had to spend nearly a month in prison.

Law: “[I]n order to succeed on a claim of false imprisonment or unlawful confinement, claimant was required to show “that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged” (Hudson v. State of New York, 115 AD3d 1020, 1022 [2014], lv denied 23 NY3d 907 [2014]; see Martinez v. City of Schenectady, 97 NY2d 78, 85 [2001]; Moulton v. State of New York, 114 AD3d 115, 119-120 [2013]).”

Claimant was sentenced to a prison term as the result of his conviction and, “where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged” (Holmberg v. County of Albany, 291 AD2d 610, 612 [2002], lv denied 98 NY2d 604 [2002]; see Jackson v. State of New York, 94 AD3d 1166, 1168 [2012]). That being said, DOCCS was “‘conclusively bound’ by the terms of the sentence and commitment order,” which unambiguously directed that claimant be released after 1½ years of confinement (Matter of McCullaugh v. DeSimone, 111 AD3d 1011, 1011 [2013], quoting Middleton v. State of New York, 54 AD2d 450, 452 [1976], affd for reasons stated below 43 NY2d 678 [1977]; see Matter of Murray v. Goord, 1 NY3d 29, 32 [2003]). “DOCCS continued to confine claimant after that period had ended and, given the absence of any order that required it to do so, its actions were not privileged” (see Moulton v. State of New York, 114 AD3d at 122-123; compare Donald v. State of New York, 17 NY3d 389, 394 [2011] [detention stemmed from valid process revoking postrelease supervision and was privileged, even though term of postrelease supervision itself was later found to be invalid]). Because they were not privileged, the prison sentence was invalid and DOCCS is liable.

Application: The Court finds that the claimant met his burden – although he should have been released, DOCCS held him for a longer period of time. DOCCS, defendants, still contended that they were justified in this release. The Court flatly rejects the Defendants’ arguments – “Defendant’s further contention, that the need to finalize the terms of claimant’s postrelease supervision conflicted with the expiration of his prison sentence, and somehow authorized his continued detention under the terms of the sentence and commitment order, is not well taken. Claimant was not confined after the maximum expiration date of his prison sentence because of any “conflicting mandates” in the commitment order, but rather because DOCCS officials chose to hold him while they belatedly finalized the terms of his postrelease supervision (see Executive Law §259-i [2]; Penal Law §70.45 [3]).”

Holding: ” is well settled that DOCCS has no jurisdiction to extend or modify a prison sentence (see People v. Williams, 14 NY3d 198, 218 [2010], cert denied US, 131 S Ct 125 [2010]; Matter of Garner v. New York State Dept. of Correctional Servs., 10 NY3d 358, 362 [2008]; cf. Donald v. State of New York, 17 NY3d at 395-396). Thus, defendant was properly found liable”

The Case is Miller v. State of New York, 516950, NYLJ 1202715544159, at 1 (App. Div., 3rd, Decided January 15, 2015).