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DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s statement providing the searching parole officers with the combination to a safe and the guns found in the safe should have been suppressed. The search of defendant’s girlfriend’s apartment was conducted after defendant, who was present in the apartment, violated parole. Defendant was handcuffed and in his underwear when the officer asked for the combination. The officers had already found other weapons and counterfeit DVD’s in the apartment. The People unsuccessfully argued the request for the combination was not designed to elicit an incriminating response:

The question—which arose after the parole officers had found counterfeit DVDs, a box filled with daggers, and a .22 caliber revolver—had only one logical purpose: to elicit a response from the defendant disclosing the combination to the safe, which would possibly lead to the discovery of incriminating evidence, and which would link the safe to the defendant … . Therefore, the Supreme Court should have granted that branch of the defendant’s motion which was to suppress his statement to law enforcement officials as to the combination to the safe, and should have suppressed the two handguns recovered from the safe, as well as a handwritten statement the defendant later made to the police about the handguns, as fruits of the poisonous tree … . Without this evidence, there could not be legally sufficient evidence to support convictions of criminal possession of a weapon in the third degree based on those two handguns, or based on the defendant’s possession of three or more firearms. Accordingly, the convictions of those three offenses must be vacated, and those three counts of the indictment must be dismissed. People v Blacks, 2017 NY Slip Op 06186, Second Dept 8-16-17

CRIMINAL LAW (SUPPRESSION, DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))/SEARCH AND SEIZURE ( DEFENDANT’S STATEMENT PROVIDING THE COMBINATION TO A SAFE TO SEARCHING PAROLE OFFICERS, AS WELL AS THE FIREARMS FOUND IN THE SAFE, SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT))

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AN APPELLATE COURT MAY CONSIDER A SUPPRESSION RULING GROUNDED ON A THEORY NOT RELIED UPON OR ARGUED BY THE PARTIES AS LONG AS THE RULING IS BASED UPON THE EVIDENCE AND IS FULLY LAID OUT AND EXPLAINED BY THE MOTION COURT; HERE THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY AND THE EVIDENCE SEIZED FROM DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). ​
DEFENDANT BAR NOT LIABLE FOR INJURIES AND DEATH OF PLAINTIFF’S DECEDENT RESULTING FROM AN ALTERCATION ON A PUBLIC ROAD IN FRONT OF THE BAR, BAR EXERCISED NO CONTROL OVER THE AREA WHERE THE ALTERCATION OCCURRED (SECOND DEPT).
THE DEFENDANT’S EXECUTION OF A POWER OF ATTORNEY IN FAVOR OF HER (NON-ATTORNEY) HUSBAND DID NOT AUTHORIZE HER HUSBAND TO FILE COURT PAPERS ON HER BEHALF IN RESPONSE TO PLAINTIFF’S ACCOUNT STATED ACTION; THE HUSBAND’S REPRESENTATION OF DEFENDANT IS PROHIBITED BY THE JUDICIARY LAW (SECOND DEPT).
MOTION TO SET ASIDE THE DAMAGES VERDICT IN THIS TRAFFIC ACCIDENT CASE AS INADEQUATE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED UNLESS DEFENDANT STIPULATES TO INCREASED AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT). ​
LAW OFFICE FAILURE EXCUSE FOR FAILING TO APPEAR DEEMED INSUFFICIENT (SECOND DEPT).
DENIAL OF MOTHER’S REQUEST TO PRESENT EVIDENCE OF HER FINANCIAL SITUATION WAS AN ABUSE OF DISCRETION; MOTHER WAS FACING INCARCERATION FOR VIOLATING HER CHILD SUPPORT OBLIGATIONS; NEW CONFIRMATION OF WILLFULNESS HEARING ORDERED (SECOND DEPT).
THE APPELLATE COURT, OVER A TWO-JUSTICE DISSENT, REFUSED TO LOWER DEFENDANT’S SENTENCE BY ONE DAY TO AVOID DEPORTATION (SECOND DEPT).
EVEN THOUGH DEFENDANT’S PHYSICAL CONDITION WAS IN CONTROVERSY, DEFENDANT DID NOT WAIVE THE PHYSICIAN-PATIENT PRIVILEGE WITH RESPECT TO THE MEDICAL RECORDS CONCERNING SEXUALLY-TRANSMITTED DISEASE (SECOND DEPT). ​

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