You are here: / / ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT’S CONVICTION, THE TWO DISSENTERS...
,

ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT’S CONVICTION, THE TWO DISSENTERS WOULD HAVE DISMISSED THE INDICTMENT BECAUSE THE TESTIMONY OF THE POLICE OFFICERS AT THE SUPPRESSION HEARING DESCRIBING THE TRAFFIC STOP WAS NOT CREDIBLE (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, rejected the argument that the police officer’s testimony at the suppression hearing describing the traffic stop was incredible. The two-justice dissent disgreed:

From the dissent:

… [W]e conclude that “the significant inconsistencies and gaps in memory . . . [in] the testimony of the police officers who testified at the hearing bear negatively on their overall credibility” … . Neither of the two officers who testified could recall with clarity any of the details of their stop of the vehicle in which defendant was a passenger, with one officer acknowledging that the only thing that he could recall was that he “smelled mari[h]uana.” The officers disagreed whether that smell was of burnt or burning marihuana. Inasmuch as both officers testified that they each had conducted innumerable traffic stops where marihuana was involved, their inability to recall further details regarding this particular stop undermines the reliability of the officers’ testimony. We therefore conclude that, because the lapses in the officers’ memory of the stop render their testimony unworthy of belief, the People failed to meet their burden of coming forward with sufficient evidence to establish the legality of the police conduct in the first instance … . People v Stroud, 2021 NY Slip Op 07375, Fourth Dept 12-23-21

 

You might also like
CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE EXPLAINED (FOURTH DEPT).
QUESTION OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY WAS COMPARATIVELY NEGLIGENT IN COLLISION WITH DRIVER WHO FAILED TO YIELD THE RIGHT OF WAY.
THE PLACEMENT OF THE LADDER WAS DEEMED THE CAUSE OF PLAINTIFF’S FALL AND PLAINTIFF HAD PLACED THE LADDER, THEREFORE PLAINTIFF’S ACTIONS WERE DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY PRECLUDING RECOVERY IN THIS LABOR LAW 240 (1) CASE (FOURTH DEPT).
PLAINTIFF WAS NOT WEARING A HARNESS AND FELL FROM A ROOF; THE FACT THAT HARNESSES MAY HAVE BEEN AVAILABLE DID NOT RAISE A QUESTION OF FACT SUFFICIENT TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).
ATTEMPTED SECOND DEGREE MURDER COUNT MUST BE DISMISSED AS AN INCLUSORY CONCURRENT COUNT OF ATTEMPTED FIRST DEGREE MURDER (FOURTH DEPT).
SEARCH WARRANT WAS NOT BASED UPON PROBABLE CAUSE TO BELIEVE THE EVIDENCE SOUGHT WOULD BE AT THE SEARCHED LOCATION, MOTION TO SUPPRESS WAS PROPERLY GRANTED AND INDICTMENT WAS PROPERLY DISMISSED.
COUNTY COURT DID NOT FOLLOW THE PROPER PROCEDURE FOR DETERMINING WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; MATTER REMITTED (FOURTH DEPT).
THE ONE COUNT INDICTMENT WAS RENDERED DUPLICITOUS BY THE BILL OF PARTICULARS AND WAS DISMISSED AFTER TRIAL; THE APPELLATE COURT NOTED THAT EVEN IF THE EVIDENCE HAD BEEN NARROWED AT TRIAL, DISMISSAL WOULD STILL BE REQUIRED BECAUSE DEFENDANT DID NOT HAVE PRETRIAL NOTICE OF THE CHARGES (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

FOR PURPOSES OF CLAIMANT’S ACTION FOR WRONGFUL CONVICTION AND IMPRISONMENT,... ALTHOUGH THE PRE-ANSWER MOTION TO DISMISS THE ARTICLE 78 PETITION WAS PROPERLY...