You are here: / Criminal Law
, ,

AN APPELLATE COURT CANNOT DETERMINE A SUPPRESSION MOTION BASED ON TRIAL EVIDENCE; THE TRIAL EVIDENCE REVEALED THE SEARCH OF DEFENDANT’S APARTMENT MAY HAVE BEEN UNLAWFUL; BASED UPON THE LIMITED INFORMATION AVAILABLE TO DEFENDANT WHEN THE SUPPRESSION MOTION WAS MADE, THE ALLEGATION THE POLICE DID NOT HAVE PERMISSION TO ENTER WAS ENOUGH TO WARRANT A PROBABLE CAUSE HEARING; MATTER REMITTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt, reversing Supreme Court’s denial of a probable cause hearing, determined the evidence revealed for the first time at trial called into serious question whether the search of defendant’s apartment was unlawful. Prior to trial the information provided to defendant gave the impression the apartment was entered and searched pursuant to a warrant. At trial the police testified they entered the apartment two hours before the search warrant was issued. The defendant was convicted of drug possession. The suppression motion stated the police entered the apartment without defendant’s permission. Given the limited and misleading information available to the defendant at the time the suppression motion was made, the allegations in the motion were sufficient to warrant a probable cause hearing. The appeal was held in abeyance and the matter was sent back for the hearing:

… [T]he Appellate Division “may not make its own finding of an independent source based upon trial testimony” … . Thus, we cannot hold that the denial of the Mapp/Dunaway hearing was proper, and the claim unpreserved, due to legal arguments pertaining to the lawfulness of the search and based on evidence adduced at trial, well after the lower court ruled on the motion to suppress.

… [H]ere, the trial testimony is being used solely to determine the context of defendant’s motion, the extent of her lack of access to information …, and the extent of information withheld from the motion court prior to making its decision to summarily deny defendant’s motion. … [W]e find that defendant’s motion should not have been summarily denied pursuant to CPL 710.60, and a hearing should have been conducted to make the necessary findings of fact. People v Esperanza, 2022 NY Slip Op 00383, First Dept 1-25-22

 

,

GIVEN THE INITIAL LACK OF DISCLOSURE BY THE PEOPLE AND DEFENDANT’S RESPONSES ONCE THE PEOPLE DISCLOSED THE TRANSMISSION WHICH LED TO HIS ARREST, DEFENDANT ALLEGED SUFFICIENT FACTS TO WARRANT A MAPP/DUNAWAY HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant had alleged sufficient facts to warrant a hearing on whether the police had probable cause to arrest him:

… [D]efendant’s motion challenged the constitutional adequacy of “any transmitted description on which the seizing officers relied in detaining and arresting the defendant.”

Defendant’s access to information was limited, because … the People … did not disclose “by either voluntary discovery or otherwise, . . . the description radioed by the purchasing officer to the arresting officer” … . Indeed, … the People did not even specifically aver that such a communication occurred. … [T]he absence of factual allegations regarding the content of a transmission from the undercover to the arresting officer did not render defendant’s motion deficient. …

[D]efendant made allegations of facts within his knowledge that … were pertinent to defendant’s argument that probable cause to arrest him was lacking. … [D]efendant described his own appearance at the time of arrest to the extent of stating that he was a 44-year-old black man, and that there was nothing “particularly distinctive about his appearance” that would tend to “preclude the possibility of misidentification.” This description allowed for a comparison between defendant’s self-description and the transmitted description, once that description was disclosed. People v Fleming, 2022 NY Slip Op 00360, First Dept 1-20-22

 

,

DEFENDANT WAS ENTITLED TO A HEARNG ON HIS MOTION TO VACATE HIS MURDER CONVICTION ON THE GROUND OF ACTUAL INNOCENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should have been afforded a hearing on his motion to vacate his murder conviction on the ground of actual innocence:

“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial” … . Further, “[m]ere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty” … . “A prima facie showing of actual innocence is made out when there is ‘a sufficient showing of possible merit to warrant a fuller exploration'” … . Upon a prima facie showing, a hearing should be conducted on a defendant’s claim of actual innocence … .

… [T]he defendant made a prima facie showing based upon the five affidavits from the alleged witnesses that he submitted and [the] recantation of [a witness’s] trial testimony [identifying defendant as the shooter]. People v Green, 2022 NY Slip Op 00315, Second Dept 1-19-22

 

,

DEFENDANT’S REPEATED REQUESTS TO REPRESENT HIMSELF WERE NOT ADEQUATELY ADDRESSED BY THE THREE JUDGES TO WHOM THE REQUESTS WERE MADE; CONVICTION REVERSED AND NEW TRIAL ORDERED (FIRST DEPT). ​

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s repeated requests to represent himself had not been properly addressed by the three calendar judges to whom the requests were made:

“The denial of defendant’s repeated requests to proceed pro se deprived defendant of his right to represent himself and requires reversal of his conviction” … . Although defendant made repeated unequivocal requests to proceed pro se, the calendar courts hearing these applications repeatedly deferred making a ruling. To the extent that these courts can be viewed as having denied the applications on the ground that defendant was disruptive, this was inappropriate because defendant’s only outbursts were the product of his frustration at not receiving a ruling on his rightful applications … . Furthermore, defendant was clearly fit to proceed to trial and fit to waive counsel … . The fact that defendant’s request to proceed pro se was based in part on his disagreements with counsel did not, standing alone, justify the denial of his request … . Defendant expressly stated that he wanted to represent himself, whether or not the court assigned new counsel. People v Goodwin, 2022 NY Slip Op 00281, First Dept 1-18-22

 

, ,

CONVCTION OF ASSAULT FIRST DEGREE AS A SEXUALLY MOTIVATED OFFENSE DOES NOT REQUIRE REGISTRATION AS A SEX OFFENDER PURSUANT TO THE SEX OFFENDER REGISTRATION ACT (SORA) (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Kern, reversing Supreme Court, agreeing with the Second Department in a matter of first impression, determined conviction of assault in the first degree as a sexually motivated felony does not require registration as a sexual offender pursuant to the Sex Offender Registration Act (SORA):

The main issue on appeal is whether defendant was properly certified and required to register as a sex offender under the Sex Offender Registration Act (SORA) based on his conviction of assault in the first degree as a sexually motivated felony. We find that the certification was improper and therefore vacate that part of the judgment. * * *

The question before us now is whether the definition of “sex offense” under Correction Law § 168-a(2)(a) includes all the sexually motivated felony offenses listed in Penal Law § 130.91 or only those sexually motivated felony offenses that are based on offenses listed in subparagraphs (i) and (ii) of Correction Law §168-a(2)(a). Based on the clear and unambiguous text of Correction Law § 168-a(2)(a), we find that the only sexually motivated felony offenses that are included in the definition of “sex offense,” and therefore registerable under SORA, are those based on offenses listed in subparagraphs (i) and (ii) of that provision. …

We find that, based on the clear and unambiguous text of Correction Law § 168-a (2)(a), first-degree assault as a sexually motivated felony is not a registerable offense under SORA because first-degree assault is not one of the enumerated offenses in subparagraphs (i) or (ii) of that provision. People v Simmons, 2022 NY Slip Op 00284, First Dept 1-18-22

 

,

A DEFENSE WITNESS WHO WOULD HAVE TESTIFIED THAT A KEY PROSECUTION WITNESS HAD A POOR REPUTATION FOR TRUTHFULNESS AND VERACTIY SHOULD NOT HAVE BEEN PROHIBITED FROM TESTIFYING; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the witness who would have testified that the complainant’s mother, a prosecution witness, had a poor reputation for truthfulness and veracity should not have been prohibited from testifying:

… [T]he defendant sought to introduce testimony from Marie Anisca-Oral, a friend of his older sister, on the subject of the reputation for truthfulness and veracity of the eight-year-old complainant’s mother (hereinafter the mother), who testified for the prosecution. In order to lay the foundation for such testimony, Anisca-Oral, a staff sergeant in the United States Army, described a community of seven or eight friends and acquaintances, predominantly of Haitian nationality, and predominantly living within certain neighborhoods in Brooklyn. Anisca-Oral testified that she had known the mother since 1999, that almost everyone she knew also knew the mother, and that every time she saw her acquaintances among this group, the mother’s reputation for truthfulness and veracity was discussed. “[T]he presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid”… . “A reputation may grow wherever an individual’s associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability” … . “The trial court must allow such testimony, once a foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity in the community; the weight given to such evidence should be left in the hands of the jury” … . People v Lisene, 2022 NY Slip Op 00194, Second Dept 1-12-22

 

, ,

DEFENDANT REFUSED TO SPEAK WITH HIS ATTORNEY; THE JUDGE DENIED REQUESTS FOR NEW COUNSEL WITHOUT QUESTIONING THE DEFENDANT, WHO WAS PRESENT IN THE COURTROOM; DEFENDANT’S RIGHT TO COUNSEL WAS NOT ADEQUATELY PROTECTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s right to counsel had not been adequately protected and returned the case to pre-suppression-hearing status. Defendant refused to speak with his attorney and the judge, despite defendant’s presence in the courtroom, never discussed the issue with the defendant before denying a request to assign new counsel:

… [W]e conclude that the defendant’s right to counsel was not adequately protected. The defendant’s request for new counsel, made through assigned counsel, contained serious factual allegations concerning the defendant’s complaints about his assigned counsel and the breakdown of communications between assigned counsel and the defendant … . Under the circumstances presented here, the Supreme Court failed to meet its ongoing duty to make inquiries to determine whether there was good cause for the requested substitution by denying the request without speaking directly with the defendant … . Thus, reversal is warranted. Further, on the record presented, the matter should be restored to pre-suppression-hearing status. Accordingly, we vacate the court’s suppression determination and remit the matter to the Supreme Court, Kings County, for further proceedings on the indictment. People v English, 2022 NY Slip Op 00189, Second Dept 1-12-22

 

, ,

DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MAKE A MOTION FOR A DOWNWARD DEPARTURE IN THIS SORA RISK-LEVEL ASSESSMENT PROCEEDING (SECOND DEPT).

The Second Department, reversing the level three SORA risk assessment, determined defense counsel was ineffective for failing to make a motion for a downward departure. The only arguments defense counsel made were without merit, demonstrated a lack of understanding of the facts, and would not have reduced the risk assessment to level two even if successful:

… [C]ounsel only challenged 35 of the 155 total points assessed against the defendant, and a resulting score of 120 would have still been within the range (between 110 and 300 points) of a presumptive level three (high) offender. Counsel did not seek a downward departure from the defendant’s presumptive risk level designation as a level three sex offender, and the record supports the defendant’s claim that his counsel failed to articulate any argument that would have had any effect on the outcome of the SORA proceeding … . … [T]he record does not demonstrate that counsel made a “strategic decision to attack the assessment of points, while foregoing any request for a downward departure.” Any such strategy in this case “would have made no sense” because it would not have had any effect on the outcome of the SORA proceeding … . Counsel’s failure to make any application for a downward departure, under the particular circumstances of this case, worked to deprive the defendant of his right to zealous advocacy, and amounted to less than meaningful representation … . People v Morancis, 2022 NY Slip Op 00202, Second Dept 1-12-22

 

SEVERAL COUNTS CHARGING CONTEMPT WERE RENDERED DUPLICITOUS BY THE TRIAL EVIDENCE, COUNTS DISMISSED (SECOND DEPT). ​

The Second Department determined several counts charging contempt were rendered duplicitous by the trial evidence and therefore must be dismissed. The contempt charges alleged the violation of two orders of protection in favor of four people. Neither the jury instructions nor the verdict sheet allowed the jury to pinpoint which alleged violation applied to whom:

Here, counts 9, 10, 11, 14, 15, 16, and 17 of Indictment No. 5685/14 all charged the defendant with criminal contempt in the second degree, arising from his alleged violation of two orders of protection during two separate incidents that occurred on June 27, 2014. The first order of protection was in favor of a single individual; the second order was in favor of that same individual, as well as three others.

Neither the verdict sheet nor the jury charge, however, explained how the testimony and evidence adduced at trial applied to the seven counts—i.e., which counts pertained to which of the two orders of protection and which of the four alleged victims. Therefore, as the People effectively concede, the challenged counts were duplicitous because it is impossible to determine the particular acts upon which the jury reached its verdict with respect to each of the counts … . People v Woodley, 2022 NY Slip Op 00201, Second Dept 1-12-22

 

,

DEFENDANT WAS ARRESTED AND INDICTED WHILE OUT ON BAIL; THE COURT SHOULD HAVE HELD A HEARING BEFORE REVOKING THE ORDER RELEASING DEFENDANT ON BAIL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the courts was required to hold a hearing before revoking the order releasing defendant on bail. Defendant was out on bail when he was arrested three times and indicted on one set of charges:

… CPL 530.60(2)(a) states that “[w]henever in the course of a criminal action or proceeding a defendant charged with the commission of a felony is at liberty as a result of an order of recognizance, release under non-monetary conditions or bail issued pursuant to this article it shall be grounds for revoking such order that the court finds reasonable cause to believe the defendant committed one or more . . . violent felony offenses.” By its express terms, this statutory section applies to situations where a principal is accused of committing violent felony offenses while he or she was “at liberty as a result of . . . bail” on a pending felony charge (id.). A principal charged with a felony who was out on bail on that charge necessarily includes individuals charged with qualifying offenses since the setting of bail is not initially authorized for nonqualifying offenses (see CPL 510.10[1], [3], [4]). … CPL 530.60(2)(a) clearly applies to the circumstances here. Since the People applied for remand on the sole basis that the principal was accused of committing violent felony offenses while at liberty on the underlying felony charges, the court was required to apply the standard in CPL 530.60(2)(a) and to conduct the hearing mandated in CPL 530.60(2)(c). People ex rel. Rankin v Brann, 2022 NY Slip Op 00153, Second Dept 1-11-22

 

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy