You are here: / Criminal Law
, ,

DEFENDANT WAS NOT ADEQUATELY INFORMED ABOUT HIS SENTENCING EXPOSURE, THE NATURE OF THE CHARGES AND THE RISKS OF REPRESENTING HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant was not adequately warned about the risks of representing himself:

The record “does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure” … , including the potential for his sentences in two pending cases, arising from unrelated incidents, to run consecutively. The court also failed to inquire into defendant’s understanding of “the nature of the charges” … . This despite defendant’s admission that he did “[n]ot necessarily” understand the charges in one case and was “still coming to grips with the charges” in the other case. The court’s statement during the waiver colloquy that defendant was “facing felony charges” was inadequate for that purpose.

Moreover, the court’s inquiry did not “accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … . The court failed to warn defendant about the numerous pitfalls of representing himself before and at trial, such as unfamiliarity with legal terms, concepts, and case names; the potential challenges of cross-examining witnesses and delivering an opening statement and summation as a pro se criminal defendant. While there is no mandatory “catechism for this inquiry,” there must be a “searching inquiry” conducted by a court before permitting self-representation … . Under the particular circumstances of this case, we find that defendant’s waiver of his right to counsel was not knowing, intelligent, and voluntary. People v Perry, 2021 NY Slip Op 05826, First Dept 10-26-21

 

, ,

THE TRIAL JUDGE DID NOT GIVE COUNSEL MEANINGFUL NOTICE OF A SUBSTANTIVE JURY NOTE; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, ordering a new trial, determined the trial judge did not give counsel meaningful notice of a substantive jury note:

Pursuant to CPL 310.30, when a trial court receives a substantive jury inquiry, the court has two separate duties: “the duty to notify counsel and the duty to respond”… . With regard to the former duty, the court must provide counsel “notice of the actual specific content of the jurors’ request” … . A “trial court’s failure to provide counsel with meaningful notice of a substantive jury note is a mode of proceedings error that requires reversal” … .

Here, although marked as a court exhibit, the trial transcript does not reflect that the Supreme Court showed or read verbatim to counsel a jury note, which stated: “We would like the DNA results in regards to the blood smear on the banister.” People v Carillo, 2021 NY Slip Op 05710, Second Dept 10-20-21

 

,

RETRIAL VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY; DEFENDANT HAD MADE A MOTION FOR A MISTRIAL WITH PREJUDICE AND DID NOT CONSENT TO THE DISCHARGE OF THE JURY (FIRST DEPT).

The First Department, reversing defendant’s conviction in the retrial and dismissing the indictment, determined the trial court’s failure to procure defendant’s consent to discharge the jury after defendant’s motion for a mistrial with prejudice triggered the protection against double jeopardy:

Double jeopardy bars a retrial except as to a defendant who has requested or consented to the mistrial … . Here, the record does not show that either defendant consented to a mistrial without prejudice. Defendants initially made general motions for a mistrial, but on the next day they expressly limited their motions to requests for a mistrial with prejudice. Accordingly, when the court announced its ruling shortly afterwards, it should have obtained defendants’ unequivocal consent before discharging the first jury or else have continued the trial with the same jury … . The retrial thus violated the constitutional prohibitions against double jeopardy, and these prohibitions require reversal of defendants’ convictions and dismissal of the indictment … . Defendants’ double jeopardy claim does not require preservation, although it may be expressly waived … . However, there was no such waiver here. People v Lantigua, 2021 NY Slip Op 05671, First Dept 10-19-21

 

, ,

THE TRAFFIC STOP WAS PRETEXTUAL, OSTENSIBLY BASED ON A BURNED-OUT LICENSE-PLATE LIGHT; BUT THERE WAS SUPPORT IN THE RECORD FOR THE CANINE SNIFF BASED UPON A FOUNDED SUSPICION OF CRIMINAL ACTIVITY; THEREFORE THE MATTER WAS BEYOND REVIEW BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, over an extensive three-judge dissent, determined there was sufficient evidence in the record to support the finding that the canine sniff was justified by a founded suspicion that criminal activity was afoot. The traffic stop was pretextual, ostensibly based on a burned-out license-plate light:

In the course of a stop predicated on the observation of traffic violations … defendant consented to a search of the backseat of his vehicle. Instead of conducting that search, the police officer walked his canine around the exterior of the vehicle and, in mere seconds, the canine alerted to the trunk. Defendant argues that law enforcement lacked founded suspicion that criminal activity was afoot and, thus, unlawfully conducted the exterior canine sniff search.

A canine sniff search of a vehicle’s exterior is lawful if police possess a founded suspicion that criminal activity is afoot … . Determinations regarding the existence of a founded suspicion of criminality involve mixed questions of law and fact … . Therefore, our review is “limited to whether there is evidence in the record supporting the lower courts’ determinations” … . …

Based on the evidence presented at the suppression hearing, including the officers’ observations prior to and during the stop, there is record support for the determination that a founded suspicion of criminal activity existed here and, thus, the issue is beyond further review … .

From the dissent:

Mr. Blandford’s case illustrates a troubling aspect of police behavior: law enforcement can pursue someone they suspect of criminal behavior without a founded suspicion of criminality, wait for the right moment to stop that person for a minor traffic infraction, and then serve up a stew of flavorless facts to transform a stop in which they have no intrinsic interest into the search they sought before they had any evidentiary basis to suspect wrongdoing. Although this case illustrates that problem, its resolution should be much simpler than resolution of the systemic problem: here, the officers did not possess information sufficient to justify the canine search. People v Blandford, 2021 NY Slip Op 05619, CtApp 10-14-21

 

,

THE EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO STAB THE VICTIM WAS LEGALLY INSUFFICIENT (FIRST DEPT).

The First Department, reversing defendant’s assault convictions, determined the evidence defendant shared the co-defendant’s intent to stab the victim was insufficient:

Defendant’s convictions of attempted assault in the first degree and assault in the second degree, charged under an acting in concert theory, were not supported by legally sufficient evidence …  These charges required proof that when the codefendant stabbed the victim, defendant shared the codefendant’s intent to do so; defendant was not convicted of any assault crimes where his liability was based on his intent to commit robbery. During a robbery attempt, the codefendant stabbed the victim from behind several times with a small knife. However, there was no evidence that defendant, who was standing in front of the victim and restraining him, knew that the codefendant had a knife or was planning to use it. “[T]he use of the knife was not open and obvious” … , and defendant released the victim within seconds of the stabbing. Under these circumstances, the record does not support a conclusion beyond a reasonable doubt that defendant was aware of the use of the knife but continued to participate in the assault … . Accordingly, the evidence did not establish defendant’s accessorial liability (see Penal Law § 20.00) for these crimes. People v Grosso, 2021 NY Slip Op 05640, First Dept 10-14-21

 

,

DEFENDANT WAS A DINNER GUEST IN HIS FRIEND’S APARTMENT WHEN THE POLICE RAIDED IT; OBSERVATIONS MADE DURING THE RAID LED TO A SEARCH WARRANT FOR THE APARTMENT; DEFENDANT ALLEGED HE RECEIVED MAIL AT THE APARTMENT; THE MAJORITY CONCLUDED DEFENDANT’S MOTION TO SUPPRESS DID NOT SUFFICIENTLY ALLEGE STANDING TO CONTEST THE SEARCH AND THE MOTION WAS PROPERLY DENIED WITHOUT A HEARING (CT APP).

The Court of Appeals, over an extensive, two-judge dissent, determined defendant’s suppression motion was properly denied without holding a hearing. The majority concluded defendant did not sufficiently allege standing to contest to search. Defendant was a dinner guest in his friend’s apartment at the time it was raided by the police. Evidence observed by the police during the raid was used to procure the search warrant:

CPL 710.60 (1) requires that a motion for suppression of physical evidence must state the ground or grounds of the motion and must contain sworn allegations of fact. CPL 710.60 (3) permits summary denial of a suppression motion where the motion papers do not provide adequate sworn allegations of fact … . The suppression court did not abuse its discretion in denying, without an evidentiary hearing, that branch of defendant’s motion which was to suppress the physical evidence recovered upon the search of the apartment pursuant to a search warrant that had been executed after his arrest, because the allegations in the motion papers were insufficient to warrant a hearing.

… In denying defendant’s motion, the suppression court stated that “defendant has failed to sufficiently allege standing to challenge the search of the subject premises,” which is the gravamen of our holding today.  Defendant’s remaining arguments addressed by the dissent, including the assertion that dinner guests have an expectation of privacy in the home of their hosts, are academic.

From the dissent:

Mr. Ibarguen’s [defendant’s] motion papers allege that he was a lawful invitee whose mail was delivered to that apartment and Mr. Ibarguen testified to having been at dinner at his friends’ house “all night.” Those facts support his claim that as a social guest, he held a legitimate expectation of privacy in at least some part of the searched apartment enabling him to challenge the legality of the warrantless search and suppress evidence recovered therein. People v Ibarguen, 2021 NY Slip Op 05617, CtApp 10-14-21

 

,

IN HIS MOTION TO WITHDRAW HIS PLEA TO CRIMINAL POSSESSION OF WEAPONS, DEFENDANT CLAIMED HE DID NOT KNOW THE WEAPONS, WHICH BELONGED TO SOMEONE ELSE, WERE STORED AT HIS MOTHER’S HOUSE, WHERE HE DID NOT RESIDE; THIS CLAIM OF INNOCENCE (POSSESSION WAS NOT “VOLUNTARY”) WAS SUFFICIENTLY SUPPORTED TO WARRANT A HEARING ON THE MOTION TO WITHDRAW THE PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to withdraw his guilty plea. Defendant was charged with possession of weapons found in his mother’s house. In his motion to withdraw his plea he explained he did not reside in his mother’s house and the weapons, which belonged to someone else, were stored in the house without his knowledge or consent:

The defendant contended, in essence, that he did not voluntarily possess the weapons at issue. * * *

… [T]he defendant’s claim of innocence was “supported” by evidentiary submissions … , which “raised the possibility of a . . . defense” … . The defendant’s submissions provided “tenable support” … for his assertion that he did not voluntarily possess the weapons at issue because he was not “aware of his physical possession or control thereof for a sufficient period to have been able to terminate it” (Penal Law § 15.00[2]). * * *

Regardless of … the strength of the People’s case, the defendant was not required to affirmatively demonstrate his actual innocence in this procedural posture … . It is clear that “an arguable claim of innocence” … may alone provide a basis for granting a presentence motion to withdraw a plea, even where the evidence of innocence is “far from conclusive” … . People v Amos, 2021 NY Slip Op 05577, Second Dept 10-13-21

 

,

THE PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS RESPONSIBLE FOR INTIMIDATING WITNESSES SUCH THAT OUT-OF-COURT STATEMENTS BY THOSE WITNESSES WERE ADMISSIBLE; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO EXERCISE PEREMPTORY CHALLENGES TO JURORS ALREADY ACCEPTED BY THE DEFENSE (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined (1) the People did not demonstrate the defendant was responsible for the intimidation of witnesses by others; and (2), the People should not have been allowed to exercise peremptory challenges to jurors after those jurors had been accepted by the defense:

“The purpose of a Sirois hearing is to determine whether the defendant has procured a witness’s absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness’s out-of-court statements” … . The People must “present legally sufficient evidence of circumstances and events from which a court may properly infer that the defendant, or those at defendant’s direction or acting with defendant’s knowing acquiescence, threatened the witness” … . “At a Sirois hearing, the People bear the burden of establishing, by clear and convincing evidence, that the defendant has procured the witness’s absence or unavailability” … .

… [T]he People’s evidence did not establish that the defendant controlled the individuals who threatened the witness or that the defendant influenced or persuaded any individual to threaten the witness or his family … . …

The Supreme Court committed reversible error when it permitted the People to exercise peremptory challenges to prospective jurors after the defendant and his codefendant exercised peremptory challenges to that same panel of prospective jurors … . This procedure violated “the one persistently protected and enunciated rule of jury selection—that the People make peremptory challenges first, and that they never be permitted to go back and challenge a juror accepted by the defense” … . People v Burgess, 2021 NY Slip Op 05580, Second Dept 10-13-21

 

,

THE POLICE OFFICERS DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON TO APPROACH DEFENDANT AND REQUEST INFORMATION; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion to suppress should have been granted in this street stop case. The police officers’ observations of defendant, pursuant to the DeBour criteria, did not justify approaching him and asking whether a bag on the counter in a store belonged to him. There was a gun in the bag:

At the suppression hearing, one of the officers testified that as his vehicle was approaching a red traffic signal at the intersection, the defendant “tensed up” or “stiffened up” and, after making eye contact with the officer through the front windshield, the defendant’s “eyes widened” and the defendant walked into the corner store. The officer continued to observe the defendant through the store’s window, but did not have a full view of him. The officer saw the defendant do “a little pacing back and forth” and then come back outside. When the traffic signal turned green, the officer and his partner pulled over and exited their vehicle. * * *

… [T]he officer who testified at the suppression hearing failed to articulate any reason for approaching the defendant, other than that he appeared nervous and the officer wanted to “see why he went into the store.” This, standing alone, did not provide an objective, credible reason for the officers to approach the defendant and request information … .

… [E]ven assuming, arguendo, that the arresting officers had an objective, credible reason for approaching the defendant, they had no basis for immediately engaging the defendant in a pointed inquiry regarding the ownership and contents of the bag inside the store … . People v Brown, 2021 NY Slip Op 05579, Second Dept 10-13-21

 

, ,

EVEN A UBIQUITOUS “DE MINIMUS” VIOLATION OF THE VEHICLE AND TRAFFIC LAW IS VALID JUSTIFICATION FOR A PRETEXTUAL TRAFFIC STOP; HERE THE LICENSE PLATE FRAME OBSCURED “GARDEN STATE” ON THE NEW JERSEY LICENSE PLATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the pretextual traffic stop was valid and defendant’s suppression motion should not have been granted on that ground. Apparently the license-plate frame obscured New Jersey’s nickname “Garden State” on the plate, which constitutes a violation of Vehicle and Traffic Law 402(1)(b):

The trial court’s concerns of permitting police officers to engage in pretextual traffic stops based on observations of trivial or technical traffic violations, which may lead to impermissible profiling, are noteworthy and merit consideration. However, once the court found that the officers reasonably believed that a traffic violation had been committed, this provided the required probable cause to stop the car … , regardless of whether the violation could be deemed de minimis, ubiquitous, unintentional, or caused by a third party such as a car dealer … . “Probable cause to believe that the Vehicle and Traffic Law has been violated provides an objectively reasonable basis for the police to stop a vehicle and . . . there is no exception for infractions that are subjectively characterized as ‘de minimis'” … . People v Dula, 2021 NY Slip Op 05465, First Dept 10-12-21

 

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