Tag: Second Department

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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

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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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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