Tag: Criminal Defense

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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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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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

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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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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.