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Pat-Down Search After Stop for Traffic Infractions Okay

The Third Department determined the police officer [Negron] properly asked defendant to get out of his car, and properly conducted a pat-down search, after a vehicle-stop for traffic infractions:

…[O]fficers may exercise their discretion to require occupants to exit a vehicle once a lawful traffic stop has been effected, out of a concern for safety and without particularized suspicion….  Furthermore, a pat-down search of a suspect’s outer clothing is reasonable and constitutionally permissible when  an officer observes facts and circumstances that give rise to a reasonable suspicion that a person is armed or poses a threat to his or her safety… .

Here, the entire encounter took place after dark in an area to which Negron had frequently responded to reports of gang activity, drug sales, fights and  shootings. Negron testified that he was familiar with defendant from his prior criminal activity and that defendant had been violent toward police in the past and had twice been charged with resisting arrest. After defendant exited the vehicle, Negron noticed bulges in the pockets in defendant’s “grabbable” area, which Negron defined as the hot zone that defendant’s hands could access quickly from their normal resting position. Defendant subsequently declined to answer the question as to whether he was in possession of any weapons or drugs, prompting Negron to conduct the pat frisk that ultimately revealed a concealed handgun. Thus, considering the circumstances in their totality, we find that the officer possessed a reasonable basis to perform a pat-down search of defendant for the presence of weapons… .  People v Issac, 104854, 3rd Dept, 6-6-13

SUPPRESSION

 

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Court’s Failure to Inquire About Potential Conflict of Interest and Failure to Follow Statutory Procedure for Jury Note Did Not Require Reversal

The Third Department determined the trial court’s failure to directly inquire into defendant’s awareness of the risks associated with his attorney’s potential conflict of interest and the trial court’s failure to follow the statutory procedure with respect to a note from the jury during deliberations did not require reversal:

Early in these proceedings, defendant’s trial counsel informed County Court of a potential conflict of interest based upon the prior representation of a prosecution witness by another attorney in counsel’s law firm. Although counsel informed the court that defendant had no objection, County Court erred by failing to directly inquire into defendant’s awareness of the potential risks and  his willingness to waive any  potential conflict … . * * *

While the better practice would  have  been  for County  Court to read the note on the record prior to responding to it and we do not condone the court’s curtailment of counsel’s argument, the record reflects that counsel was aware  of the specific content of the note and  we  are satisfied that counsel had  a full opportunity to explain his position as to the meaning  of “duly served.”  Under  these circumstances, defense counsel can be  said to have meaningfully participated in the response to the note… .  People v Cooper, 104749, 3rd Dept, 6-6-13

 

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Questioning at Home Did Not Trigger Need for Miranda Warnings

The Third Department determined the questioning of defendant by police at defendant’s home did not constitute custodial interrogation requiring Miranda warnings:

At  the  Huntley  hearing, the  two  officers testified that they  informed  defendant  of  the  reason  for  their  visit, were invited into his home, sat around a dining room table and engaged in small talk about  various topics. Defendant was not restrained, he was cooperative and the conversation was cordial, including when discussing the victim’s allegations. The questions regarding the victim were investigatory and not accusatory in tone. After about 30 minutes to an hour and defendant’s acknowledgment of the veracity of some of the  victim’s claims, he  was  asked  to  accompany  the  officers to  the Sheriff’s Department,  he  agreed  to  go  in the  officers’ unmarked vehicle and he was not at any time placed in handcuffs.  People v Vieou, 104521, 3rd Dept, 6-6-13

SUPPRESSION

 

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Confidential Informant Provided Reasonable Suspicion for a Vehicle Stop; Information Vehicle Occupants Were Armed Justified Stop with Guns Drawn

The Third Department determined that information from a confidential informant provided reasonable suspicion sufficient to justify an investigatory vehicle stop and noted that a vehicle stop with guns drawn did not ripen into an arrest where the police had reliable information the occupants of the vehicle were armed:

We reject defendant’s contention that removing him from the vehicle at gunpoint constituted an arrest without probable cause. An investigatory stop will not ripen into an arrest based upon the use of weapons by the police when they have reason to believe that the suspects are armed and dangerous, and here the police had been advised that defendant and the other individual were armed … .  People v Coffey, 104496, 3rd Dept, 6-6-13

SUPPRESSION

 

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Defendant Who Pled to All Charges Without a Plea Bargain Could Not Be Required to Waive Appeal

The Third Department noted that the defendant should not have been required to waive his right to appeal where he pled to all the charges and there was no plea bargain:

Having exercised his statutory  right to  plead  guilty to  all of  the charges levied against him in the indictment and inasmuch as “no promise, plea agreement, reduced charge, or any other bargain or consideration” was given in exchange for that plea, defendant was improperly required to waive his right to appeal … .  People v Crump, 104433, 3rd Dept, 6-6-13

 

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SORA Determination without Board Recommendation Okay When Defendant Released Same Day as He Was Sentenced

The Third Department determined the SORA court could make a SORA level assessment without a recommendation from the Board of Examiners of Sex Offenders.  The facts of the case did not fall into any of the categories listed in the SORA statute which allows an assessment without a Board recommendation when the defendant is not incarcerated and requires a Board assessment before discharge when the defendant is incarcerated.  Here the defendant was released from incarceration on the day he was convicted. In holding the SORA properly made the assessment in the absence of a Board recommendation, the Third Department wrote:

Although SORA charges the Board with responsibility for making a risk level recommendation relative to incarcerated offenders, the ultimate responsibility for the risk level determination  is vested  in the  sentencing  court, which  “‘in the exercise of its discretion, may depart from [the Board’s] recommendation and determine the sex offender’s risk level based upon  the facts and circumstances that appear in the record'”…. In our view, this judicial obligation necessarily includes the authority to determine the appropriate procedure for a  risk level determination where,  as  here, the circumstances are not fully addressed by the SORA statutory scheme. This conclusion is supported by the statutory provisions addressing failures by  the  Board  to complete its statutory obligation; where the Board fails to issue a timely recommendation, SORA  provides that the court must nonetheless make  a risk level determination and, if it cannot do  so before the offender is discharged, must “expeditiously complete the hearing  and  issue its determination”  after his or  her  release (Correction Law § 168-l [8]). In effect, that is the procedure that County Court followed here.  People v Grimm, 104233, 3rd Dept, 6-6-13

 

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Waiver of Appeal Not Sufficient

The Third Department determined defendant’s waiver of his right to appeal, which included a written waiver, was not sufficient because it was not clear he understood the waiver was separate and distinct from the rights given up by the guilty plea.  The defendant was 21 years old, had no prior criminal history and had some mental health problems.  The Third Department wrote:

…[T]he court did not ensure that “defendant ha[d] ‘a full appreciation of the consequences’ of such waiver”…, which requires record proof that the defendant “comprehend[s] that an  appeal waiver ‘is separate and  distinct from  those rights automatically forfeited upon  a plea of guilty'”….  This was  especially important considering defendant’s age, mental health history and lack of prior criminal history; defendant was 19 years old at the time of the crime and 21 at the time of sentencing, had  been diagnosed and  had  ongoing problems with attention deficit hyperactivity disorder, past history of suicidal ideation, bipolar disorder, a possible learning disorder and  a significant history of acting out on  impulse.  The written waiver also failed to explain the separate and distinct nature of the right being waived.  As it is not evident on the face of the record that defendant was  aware  of this separate and  distinct nature, we cannot be sure that his waiver of the right to appeal was knowingly and intelligently made… .  People v Bouton, 103593B, 3rd Dept, 6-6-13

 

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Duplicitous Counts Dismissed Because Jury Could Not Connect Evidence with Specific Counts

The Third Department determined several counts of reckless endangerment were duplicitous because there was no way for the jury to match each count with specific conduct by the defendant:

Here, County Court found that the original indictment, which included seven counts of reckless endangerment, did not provide sufficient information to  enable  defendant  to  distinguish each count. Rather than identify each count temporally or by physical evidence, the People sought to remedy the defect by providing the name of an intended victim for each count. However, reckless endangerment is a conduct-specific, rather than a victim-specific, crime….  Thus, despite the amendment, the conduct underlying each count of the indictment remained unclear, as none of the seven shots fired hit any of the individuals named in the indictment.  As a result, there is simply no way to match each count of the indictment with the specific underlying conduct of defendant that would insure that the jury had reached a unanimous verdict with regard to each count and,  therefore, the  reckless endangerment  counts  must  be dismissed as duplicitous… . People v Estella, 103574, 3rd Dept, 6-6-13

 

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Initial Detention at Gun-Point Was Not an Illegal Arrest

The Third Department determined that the initial detention of the defendant by the police, with guns drawn, did not amount to an illegal arrest:

Given the extremely short period of time between the report of the armed robbery and the arrival of the officers on the scene, defendant’s presence alongside the residence and the absence of any other individual in the vicinity, the officers were justified in forcibly detaining defendant in order to quickly confirm or dispel their reasonable suspicion of defendant’s possible involvement in the armed robbery… . Furthermore, defendant was informed that he was being detained, was not questioned during that period of time and was held at the crime scene in order to effectuate showups by the victims of the robbery… . People v Stroman, 103148, 3rd Dept, 6-6-13

SUPPRESSION

 

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Inventory Search Which Included Removal of Seat Panels and Speakers Okay

Over a substantial dissent by Judge Rivera, the Court of Appeals, in a full-fledged opinion by Judge Piggot, determined a vehicle search after a DWI arrest, in which an illegal weapon was found, was a valid inventory search.  The defendant had argued that the removal of seat panels that were askew and a speaker system demonstrated that the search was not a inventory search because the search was focused on finding contraband:

Following a lawful arrest of a driver of a vehicle that is required to be impounded, the police may conduct an inventory search of the vehicle. The search is “designed to properly catalogue the contents of the item searched” …. However, an inventory search must not be “a ruse for a general rummaging in order to discover incriminating evidence” …. To guard against this danger, the search must be conducted pursuant to an established procedure “clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably” …. “While incriminating evidence may be a consequence of an inventory search, it should not be its purpose” …. The People bear the burden of demonstrating the validity of the inventory search ….

Here the People proffered written guidelines, the officer’s testimony regarding his search of the vehicle, and the resulting list of items retained. Although defendant takes issue with the officer’s removal of the speakers by arguing that such action was a ruse designed to search for drugs, the officer’s testimony that it was police protocol to remove any owner-installed equipment, was accepted by the hearing court and we perceive no grounds upon which to overturn that determination. * * *

It was reasonable for the officer to check in the seat panels that were askew as part of his inventory. The fact that the officer knew that contraband is often hidden by criminals in the panels did not invalidate the entire search… .  People v Padilla, No 114, CtApp, 6-6-13

SUPPRESSION

 

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