Criminal Law Update November 2020

Criminal Law Update November 2020

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 1 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between November 1, 2020 and November 3o, 2020 which address issues in “Criminal Law.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

The “Criminal Law” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. A link to the written materials for this course (“Criminal Law Update Pamphlet November 2020”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 1 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Criminal Law Update Pamphlet November 2020”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Criminal Law Update Pamphlet November 2020

Criminal Law Update November 2020 Attorney Affirmation

Criminal Law Update November 2020 Evaluation Survey

Topics Covered in the “Criminal Law November 2020” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Criminal Law Update Pamphlet November 2020”

ARMED FELONIES, YOUTHFUL OFFENDERS. 7

CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE IS NOT AN ARMED FELONY; MATTER REMITTED FOR A NEW YOUTHFUL OFFENDER STATUS DETERMINATION (SECOND DEPT). 7

ASSAULT, DANGEROUS INSTRUMENT. 7

THE PROOF DEFENDANT USED THE CONCRETE SIDEWALK AS A DANGEROUS INSTRUMENT WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; DEFENDANT PUNCHED THE VICTIM WHEN THE VICTIM WAS STANDING, THE VICTIM FELL TO THE SIDEWALK, AND DEFENDANT CONTINUED TO PUNCH THE VICTIM, CAUSING THE VICTIM’S DEATH (FOURTH DEPT). 7

ASSAULT, PHYSICAL INJURY. 8

THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION VACATED; UNPRESERVED ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT). 8

ATTEMPT, MURDER. 9

CONVERSATIONS ABOUT AND PLANNING OF THE MURDER OF DEFENDANT’S WIFE AND MOTHER-IN-LAW DID NOT CONSTITUTE LEGALLY SUFFICIENT EVIDENCE OF ATTEMPTED MURDER (CT APP). 9

ATTORNEYS, JUDGES, CONFLICT OF INTEREST. 10

THE DISTRICT ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED FROM PROSECUTING THE DEFENDANT FOR ALLEGED SEX OFFENSES ON THE GROUND THAT, AS A FAMILY COURT JUDGE, THE DISTRICT ATTORNEY HAD PRESIDED OVER FAMILY COURT PROCEEDINGS INVOLVING THE DEFENDANT AND THE ALLEGED VICTIM OF THE CHARGED SEX OFFENSES (THIRD DEPT). 10

CRIMINAL CONTEMPT, ORDERS OF PROTECTION. 11

ALTHOUGH THE DEFENDANT VIOLATED THE ORDER OF PROTECTION BY GOING INSIDE THE PROTECTED PERSON’S HOUSE, THERE WAS INSUFFICIENT EVIDENCE OF ANY CONTACT WITH THE PROTECTED PERSON; CRIMINAL CONTEMPT FIRST CONVICTION REDUCED TO CRIMINAL CONTEMPT SECOND (FOURTH DEPT). 11

CRIMINAL CONTEMPT, ORDERS OF PROTECTION. 12

THE UNIQUE PROOF REQUIREMENTS FOR CRIMINAL CONTEMPT FIRST DEGREE FOR VIOLATION OF AN ORDER OF PROTECTION WERE NOT MET; THE FACT THAT DEFENDANT STIPULATED TO THE ACCURACY OF AN INACCURATE SPECIAL INFORMATION ABOUT A PRIOR CRIMINAL CONTEMPT CONVICTION DOES NOT REQUIRE A DIFFERENT RESULT (FOURTH DEPT). 12

CRIMINALLY NEGLIGENT HOMICIDE. 13

A WHEEL CAME OFF DEFENDANT’S TRUCK CAUSING A FREAK ACCIDENT INVOLVING TWO OTHER VEHICLES RESULTING IN THE DEATH OF A DRIVER; THE CRIMINALLY NEGLIGENT HOMICIDE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; AT MOST, DEFENDANT FAILED TO PERCEIVE THE RISK CREATED BY A NOISY WHEEL (FOURTH DEPT). 13

GUILTY PLEAS, ATTORNEYS. 14

DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT RAISED A QUESTION WHETHER DEFENSE COUNSEL SHOULD HAVE INFORMED HIM OF AN AFFIRMATIVE DEFENSE TO THE ROBBERY FIRST CHARGE (SECOND DEPT). 14

GUILTY PLEAS, IMMIGRATION CONSEQUENCES. 15

THE SENTENCING JUDGE DID NOT INFORM DEFENDANT OF THE IMMIGRATION CONSEQUENCES FOR NONCITIZENS; MATTER REMITTED TO GIVE THE DEFENDANT THE OPPORTUNITY TO MOVE TO VACATE HER GUILTY PLEA, DESPITE THE FACT DEFENSE COUNSEL TOLD THE JUDGE THAT DEFENDANT SAID SHE WAS A CITIZEN (SECOND DEPT). 15

GUILTY PLEAS. 16

A DEFENDANT MAY PLEAD GUILTY TO A CRIME WHICH IS A LEGAL IMPOSSIBILITY OR FOR WHICH THERE IS NO FACTUAL BASIS AS LONG AS IT IS SUBJECT TO A LESSER PENALTY THAN THE CHARGED OFFENSE(S) (THIRD DEPT). 16

HABEAS CORPUS, COVID-19. 17

PETITIONERS, INMATES AT A CORRECTIONAL FACILITY, RAISED ALLEGATIONS COGNIZABLE IN HABEAS CORPUS REGARDING THE FACILITY’S RESPONSE TO COVID-19; SUPREME COURT SHOULD NOT HAVE REFUSED TO ISSUE AN ORDER TO SHOW CAUSE WHY THE PETITIONERS SHOULD NOT BE RELEASED (SECOND DEPT). 17

INCLUSORY CONCURRENT COUNTS, SENTENCING. 18

INCLUSORY CONCURRENT COUNTS DISMISSED; POSSESSION OF A WEAPON SENTENCE SHOULD BE CONCURRENT WITH THE ATTEMPTED MURDER AND ASSAULT SENTENCES (SECOND DEPT). 18

LARCENY. 19

THE CONVICTION FOR GRAND LARCENY BY FALSE REPRESENTATION WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; THERE WAS NO EVIDENCE DEFENDANT RECEIVED ADDITIONAL FUNDS AFTER MAKING THE ALLEGED FALSE REPRESENTATION AND NO EVIDENCE DEFENDANT INTENDED TO APPROPRIATE THE FUNDS AT THE TIME THE ALLEGED FALSE REPRESENTATION WAS MADE (SECOND DEPT). 19

MOLINEUX. 20

EVIDENCE OF A 1990 ROBBERY AND SEXUAL ASSAULT TO PROVE IDENTITY SHOULD NOT HAVE BEEN ADMITTED; THE SIMILARITIES WERE NOT STRONG ENOUGH (SECOND DEPT). 20

MOLINEUX. 21

THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A PRIOR UNCHARGED SHOOTING; DEFENSE COUNSEL DID NOT OPEN THE DOOR FOR THAT EVIDENCE; THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO TREAT THE PEOPLE’S WITNESSES AS HOSTILE WITNESSES; NEW TRIAL ORDERED (FOURTH DEPT). 21

MURDER. 22

DNA FOUND ON THE MURDER VICTIM’S BODY WAS LINKED TO THE DEFENDANT WHO WAS ARRESTED TWO YEARS AFTER THE MURDER; THERE WAS NO OTHER EVIDENCE CONNECTING DEFENDANT TO THE VICTIM OR TO THE AREA WHERE THE VICTIM WAS FOUND; THE SECOND DEPARTMENT, OVER AN EXTENSIVE DISSENT, FOUND THE EVIDENCE LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION (SECOND DEPT). 22

OPINION EVIDENCE, BACKGROUND EVIDENCE. 24

POLICE OFFICER’S OPINION A HOMICIDE HAD BEEN COMMITTED AND THE VICTIM’S MOTHER’S TESTIMONY ABOUT THE VICTIM’S PERSONAL BACKGROUND SHOULD NOT HAVE BEEN ADMITTED; OPINION ISSUE REVIEWED IN THE INTEREST OF JUSTICE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT). 24

PROBABLE CAUSE, CVIL RIGHTS, FALSE ARREST. 25

UNDER THE AGUILAR-SPINELLI ANALYSIS, THERE ARE QUESTIONS OF FACT ABOUT WHETHER THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST; THE CITY’S MOTION FOR SUMMARY JUDGMENT ON THE 42 USC 1983, FALSE ARREST, ASSAULT AND BATTERY CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 25

SEARCHES AND SEIZURES, VEHICLES, CLOSED CONTAINERS. 26

AN ALLEGED CONTROLLED SUBSTANCE WAS NOT IN PLAIN VIEW IN THE VEHICLE; THEREFORE THE WARRANTLESS SEARCH OF A CLOSED CONTAINER IN THE VEHICLE, WHICH REVEALED A WEAPON, WAS NOT JUSTIFIED; WEAPONS CHARGES DISMISSED (SECOND DEPT). 26

SEARCHES AND SEIZURES, VEHICLES. 27

THE IMPOUNDMENT AND SEARCH OF DEFENDANT’S CAR, WHICH WAS LEGALLY PARKED AT THE TIME OF DEFENDANT’S ARREST, WERE ILLEGAL; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). 27

SEARCHES AND SEIZURES, WARRANTS, CELL PHONES. 28

THE APPLICATION FOR A WARRANT FOR THE SEARCH OF DEFENDANT’S CELL PHONE DID NOT PROVIDE PROBABLE CAUSE FOR THE SEARCH; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT). 28

SENTENCING. 30

DEFENDANT SHOULD HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER RE TWO COUNTS OF CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE, WHICH ARE NOT VIOLENT FELONIES (FOURTH DEPT). 30

SENTENCING. 30

THE COURT WAS NOT AUTHORIZED TO SENTENCE DEFENDANT AS A SECOND VIOLENT FELONY OFFENDER BECAUSE DEFENDANT WAS CONVICTED OF AN A FELONY; THE LENGTH OF DEFENDANT’S SENTENCE, HOWEVER, IS NOT AFFECTED (SECOND DEPT). 30

SENTENCING. 31

THE FEDERAL OFFENSE DID NOT REQUIRE THAT THE FIREARM BE OPERABLE BUT THE NEW YORK OFFENSE DOES; THEREFORE THE FEDERAL OFFENSE IS NOT A PREDICATE OFFENSE FOR SENTENCING PURPOSES; THE DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT). 31

SEX OFFENDERS. 32

IN THESE THREE CASES, CONFINING LEVEL THREE SEX OFFENDERS WHO ARE ELIGIBLE FOR RELEASE FROM PRISON UNTIL COMPLIANT HOUSING IS AVAILABLE WAS NOT A CONSTITUTIONAL VIOLATION (CT APP). 32

SEX OFFENDERS. 33

ORDER ADJUDICATING DEFENDANT A LEVEL TWO SEX OFFENDER WAS DEFECTIVE; MATTER REMITTED (FOURTH DEPT). 33

SEX OFFENDERS. 33

SEX OFFENDERS SUBJECT TO POSTRELEASE SUPERVISION MAY BE HOUSED IN A RESIDENTIAL TREATMENT FACILITY BEYOND THE SIX-MONTH STATUTORY PERIOD BEFORE COMPLIANT HOUSING HAS BEEN FOUND (CT APP). 33

SEX OFFENDERS, MENTAL HYGIENE LAW. 34

A FINDING DEFENDANT SUFFERS FROM A MENTAL ABNORMALITY CANNOT BE BASED SOLELY ON A FINDING DEFENDANT SUFFERS FROM ANTI-SOCIAL PERSONALITY DISORDER (ASPD); REFUSAL OF DEFENDANT’S REQUEST FOR A JURY INSTRUCTION TO THAT EFFECT WAS REVERSIBLE ERROR; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT ADJUDICATING HIM A SEX OFFENDER REQUIRING CIVIL MANAGEMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). 34

SPEEDY TRIAL. 35

THE PEOPLE DEMONSTRATED THE EXERCISE OF DUE DILIGENCE IN ATTEMPTING TO LOCATE THE DEFENDANT; DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). 35

STREET STOPS, TRAFFIC STOPS. 36

THE DE BOUR STREET STOP REQUIREMENTS, NOT THE TRAFFIC STOP REQUIREMENTS, APPLY TO THE APPROACH OF A PERSON IN A STATIONARY CAR WITH THE ENGINE RUNNING (THIRD DEPT). 36

STREET STOPS. 37

THE POLICE CAR FOLLOWED DEFENDANT, FIVE FEET BEHIND HIM, AS HE WALKED THROUGH A NARROW PASSAGEWAY; THE POLICE WERE NOT IN PURSUIT AND THE HANDGUN DISCARDED BY THE DEFENDANT WAS PROPERLY SEIZED (FOURTH DEPT). 37

STREET STOPS. 38

THE ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STOP AND FRISK OF DEFENDANT WAS NOT JUSTIFIED; THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT). 38

TRAFFIC STOPS. 40

DEFENDANT’S PRESENCE NEAR A SUSPECTED DRUG HOUSE IN A HIGH CRIME AREA GAVE RISE TO ONLY A GROUNDED SUSPICION; THE ATTEMPT TO STOP THE CAR IN WHICH DEFENDANT WAS A PASSENGER WAS NOT JUSTIFIED BY REASONABLE SUSPICION; THE MOTION TO SUPPRESS THE SEIZED EVIDENCE AND THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN GRANTED; DEFENDANT’S GUILTY PLEA, WHICH ENCOMPASSED AN UNRELATED OFFENSE, WAS VACATED IN ITS ENTIRETY (FOURTH DEPT). 40

TRAFFIC STOPS. 41

EVEN IF THE OFFICER WERE WRONG ABOUT WHETHER A NON-FUNCTIONING CENTER BRAKE LIGHT VIOLATES THE VEHICLE AND TRAFFIC LAW, THE OFFICER’S INTERPRETATION OF THE LAW WAS OBJECTIVELY REASONABLE; THEREFORE THE STOP WAS VALID AND THE SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (CT APP). 41

TRAFFIC STOPS. 43

THE OFFICER WHO STOPPED THE CAR IN WHICH DEFENDANT WAS A PASSENGER AFTER HEARING GUN SHOTS DID NOT HAVE THE REASONABLE SUSPICION NEEDED FOR THE SEIZURE OF A VEHICLE; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT). 43

TRAFFIC STOPS. 44

THE TRAFFIC STOP WAS BASED ON A COMPUTER-GENERATED “SIMILARITY HIT;” AT THE SUPPRESSION HEARING THE PEOPLE DID NOT MEET THEIR BURDEN OF GOING FORWARD BECAUSE THE BASIS OF THE “SIMILARITY HIT” WAS NOT DEMONSTRATED; THIS PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS (CT APP). 44