In a prison disciplinary proceeding, the hearing officer’s refusal to provide the inmate with the instructions for the operation of the machine which was used to test his urine for the presence of drugs required annulment of the determination the prisoner had used a controlled substance. Matter of Marshall vs Fischer, 2012-01538, Index No. 6260/11 Second Dept. 2-13-13
Proof was insufficient to demonstrate “drug or alcohol abuse” under the SORA guidelines. The SORA assessment was therefore improper. People vs. Palmer, People vs Long, Nos. 14 & 15, CtApp, 2-12-13
…[T]he consecutive nature of defendant’s sentence pursuant to Penal Law [section] 70.25 (2-a) is a collateral consequence of his conviction. …[T]he failure of the trial court to address the impact of Penal Law [section] 70.25 (2-a) during the plea colloquy does not require vacatur of the plea.” People vs Belliard, No. 5, CtApp 2-12-13
The Fourth Department reversed defendant’s conviction because his attorney had a conflict of interest. The attorney had represented someone who was heard on a recording talking to the defendant. The People sought to introduce the recording in evidence to prove defendant’s motive and intent for the charged burglary. The Fourth Department explained the procedure and criteria for determining whether such a conflict of interest requires reversal. One of the criteria is that the conflict affect the conduct of the defense, which the Fourth Department found to have occurred in this case. People vs McGillicuddy, 7 12-00530 Fourth Dept. 2-8-13
Although the victim was shot in the chest and arm, the Fourth Department determined there was insufficient evidence of serious physical injury and reduced the Assault 1st conviction to Attempted Assault 1st. The Court did not reach the issue whether the indictment was supported by legally sufficient evidence because the issue was not raised in the omnibus motion (suggesting that a conviction does not preclude raising insufficient-evidence-to-indict on appeal). People vs Madera, 6, KA 11-00450 Fourth Dept. 2-8-13
There is no right to counsel in a presentence interview with the probation department. People vs McNamara, 1472, KA 12-00204 Fourth Dept. 2-8-13
The Fourth Department dismissed one count of an indictment finding the indictment “multiplicitous” (charging a single offense in more than one count). The error was not preserved but the Court reviewed the issue “in the interest of justice.” People vs Quinn, 1131, KA 11-00278 Fourth Dept. 2-8-13
A valid waiver of the right to appeal did not preclude defendant from challenging the severity of his sentence where the sentencing court did not inform the defendant of the maximum term of incarceration and there was no specific sentence promise at the time of the waiver. People vs Scott, 107, KA 11-01655 Fourth Dept. 2-8-13
The Fourth Department determined a police officer had the right to frisk the passengers in a lawfully stopped car to the extent necessary to protect his safety because he was acting on reasonable suspicion that criminal activity was afoot and on an articulable basis to fear for his own safety. Before the defendant got into the car which was stopped for a traffic infraction, the officer had observed the defendant “engage in a number of ‘handshakes’ “which the officer determined were either hand to hand drug sales or “gang signals.” When the car was stopped the officer saw the defendant either take something out of or put something into his pocket. People vs Daniels, 9, KA 09-287 Fourth Dept. 2-8-13
DeBour, vehicle stop, street stops, search
In an appeal by the People, the Fourth Department determined the suppression motion should not have been granted for the reasons relied on by the suppression court. The Fourth Department found that the officers who approached two men and asked the non-threatening question “What’s up guys” had “an objective credible reason not necessarily indicative of criminality” for doing so. The men were seen walking from a private driveway toward a car in a public parking lot for a recreation area. The men were dressed “pretty heavy” for the mid-70-degree weather, unlike the bikers and hikers who use the park. And there had been a number of daytime burglaries in the area. People vs Johnston, 8, KA 12-01414 Fourth Dept. 2-8-13
DeBour, street stops
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