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DEFENDANT’S SPEEDY TRIAL MOTION SHOULD HAVE BEEN GRANTED; THE CASE COULD BE PRESENTED WITHOUT THE COMPLAINANT, WHO HAD NO MEMORY OF THE INCIDENT; DEFENSE COUNSEL WAS NOT UNAVAILABLE WITHIN THE MEANING OF THE STATUTE BECAUSE A COLLEAGUE WAS IN COURT REPRESENTING DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s speedy trial motion should have been granted. The court noted the issue is the prosecution’s readiness for trial, not whether defense counsel is available:

The court erred, firstly, in excluding 93 days of pre-readiness delay in which the prosecution failed to present its case to the grand jury. “[T]he obligation to obtain a proper accusatory instrument is the prosecutor’s alone” … , making “the period prior to the People’s obtaining an indictment [] chargeable to them, absent the applicability of some exclusion” … . …

… [T]he prosecutor did not and could not establish its inability to proceed with the case since the complainant was not necessary to present its case to the grand jury. The charges against defendant were for leaving the scene of the accident without reporting it. The complainant remembered nothing of the accident, let alone defendant’s actions in its aftermath, professing to this lack of memory on the very day of the accident. …

The court also erred in excluding 83 days of post-readiness delay that was due to the prosecutor’s improper declaration that its readiness was “moot” because lead defense counsel was on trial. While acknowledging that a colleague of defense counsel was present, the court nonetheless erroneously concluded that “the People’s state of readiness is irrelevant where counsel is unavailable,” misconstruing the law as to what constitutes “unavailability.” …

Because a colleague of defense counsel stood up on the case on July 8, 2015, as the court itself acknowledged, defendant was not without representation on the basis that “counsel was unavailable.” People v Alvarez, 2021 NY Slip Op 03286, First Dept 5-25-21

 

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DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS INVALID BECAUSE DEFENDANT WAS NOT AWARE OF HIS SENTENCING EXPOSURE AND THE JUDGE DID NOT CONDUCT A SEARCHING INQURY; THE EVIDENCE OF CRIMINAL MISCHIEF AND AUTO STRIPPING WAS LEGALLY INSUFFICIENT AND THE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the waiver of defendant’s right to counsel was invalid and the evidence of criminal mischief and auto stripping was legally insufficient, and the convictions were against the weight of the evidence:

Defendant’s waiver of his right to counsel was invalid, because the record “does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure” … . “The critical consideration is defendant’s knowledge at the point in time when he first waived his right to counsel”; the court’s subsequent warnings about sentencing “were incapable of retrospectively ‘curing’ the . . . court’s error” … . Moreover, the court “improperly granted defendant’s request to proceed pro se without first conducting a searching inquiry regarding defendant’s mental capacity to waive counsel” … , in light of his history of mental illness, as well as his statement, in response to the court’s reference to the “tremendous pitfalls of representing yourself,” that “[n]one of that has been explained,” even after the court had warned him of a number of such risks.

Defendant’s conviction of third-degree criminal mischief as to one of the vehicles he damaged (count four), and his conviction of first-degree auto stripping, were unsupported by legally sufficient evidence (a claim we review in the interest of justice), and were also against the weight of the evidence … . The People failed to establish that particular charge of criminal mischief because the evidence did not show that “the reasonable cost of repairing the damaged property” … . Such costs “may not be established by hearsay”… . The People relied on a nonexpert witness who was not the owner of the vehicle and did not pay for the repairs, but testified that he looked at a receipt and that the repair costs were $600 … , and the People do not invoke any exception to the hearsay rule. In the absence of admissible evidence as to the repair costs for that vehicle, the People also failed to establish that the aggregate damage to all the vehicles exceeded $3,000, the minimum value for first-degree auto stripping … . People v Jackson, 2021 NY Slip Op 03288, First Dept 5-25-21

 

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UNDER THE CIRCUMSTANCES OF THE TRAFFIC STOP, THE CORRECT STANDARD TO APPLY TO THE CANINE SNIFF OF DEFENDANT’S PERSON WAS REASONABLE SUSPICION, NOT PROBABLE CAUSE; THE SUPPRESSION MOTION WAS PROPERLY DENIED; THE DISSENT DISAGREED (THIRD DEPT).

The Third Department, over a concurrence and a dissent, determined the canine sniff after a traffic stop was justified by reasonable suspicion. The concurrence argued the court could not reach the proper standard for the canine sniff because the motion court did not rule on it. The dissent argued the probable cause standard should apply:

Defendant correctly asserts that the canine’s contact sniff of his person intruded upon his personal privacy as secured under both the Fourth Amendment of the US Constitution and article 1, § 12 of the NY Constitution … . The question presented is whether the search ran afoul of either constitutional provision and what standard applies to make that assessment — an issue of first impression for this Court.

Considering the context of a vehicle traffic stop and how events unfolded, we conclude that a reasonable suspicion standard should apply, not one of probable cause … . A canine sniff is a minimal intrusion compared to a full-blown search of a person, intended only to detect the possession of narcotics … . Without prompting from [officer] Bracco, the canine twice was “in odor” of its own accord, providing a reasonable and articulable basis for Bracco to suspect that defendant possessed narcotics on his person. Given the necessity for prompt action, it was not unreasonable for Bracco to allow the canine to approach defendant. There was contact between the canine and defendant’s person, but the record suggests that contact was brief and the canine quickly alerted. In these circumstances, we conclude that the search was valid and the suppression motion properly denied. People v Butler, 2021 NY Slip Op 03222, Third Dept 5-20-21

 

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THE RECORDING AND DISCLOSURE OF INMATE PHONE CALLS DO NOT VIOLATE THE INMATES’ RIGHT TO EQUAL PROTECTION (FIRST DEPT).

The First Department reiterated that the recording and disclosure of inmate phone calls do not violate the inmate’s constitutional right to equal protection:

… [O]nce an inmate implicitly consents to the recording of his calls, the inmate retains no reasonable expectation of privacy that would prevent the correctional facility from disclosing the recording. “[W]here detainees are aware that their phone calls are being monitored and recorded all reasonable expectation of privacy in the content of those phone calls is lost, and there is no legitimate reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible” (People v Diaz, 33 NY3d 92, 100 [2019] …). Indeed, at the heart of defendant’s argument is the contradictory proposition that the warrant requirement should be applied to a statement in which he has no privacy interest at all.

The principle stated in Diaz applies to any person, incarcerated or not, who waives his or her privacy interest in a conversation, whether by consenting to have it recorded or otherwise. To this extent, defendant was similarly situated to defendants awaiting trial while at liberty. While defendant was treated disparately from such defendants in that he was required to either consent to recording or go without telephone use, this differential treatment did not run afoul of the equal protection clause. Furthermore, defendant fails to show that the government action at issue burdens a fundamental right … . People v Jennings, 2021 NY Slip Op 03262, First Dept 5-20-21

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THE POLICE WERE JUSTIFIED IN STOPPING A BICYCLIST WHO WAS WEAVING AND HOLDING A BULKY OBJECT IN HIS WAISTBAND; DEFENDANT’S MOTION TO SUPPRESS PROPERLY DENIED (SECOND DEPT).

The Second Department determined Supreme Court properly denied defendant’s motion to suppress a gun and statements based upon a street stop. The court noted that defendant was riding a bicycle and the street stop rules which apply to pedestrians, not vehicles, apply:

The Court of Appeals has held that an officer’s instruction to a pedestrian to “stop” requires only a common-law right of inquiry and does not constitute a seizure … . …

… Supreme Court properly determined that the officer’s statements to the defendant to “hold up” constituted a level two encounter under De Bour, and that the officers were justified in making a common-law inquiry based upon their observations of the manner in which the defendant was riding his bicycle, as well as their observation of a “bulky” object that the defendant was holding at his waistband … .

… [T]he defendant stopped in response to the commands and … the officers did not block his path or otherwise signal that he was not free to leave … . The unobtrusive manner in which the police followed the defendant did not elevate the pursuit itself to a seizure … .

The officers were justified in frisking the defendant based on Officer Schnell’s observation of the bulky object in the defendant’s waistband together with the defendant’s statements that he had a gun … . People v Rodriguez, 2021 NY Slip Op 03202, Second Dept 5-19-21

 

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DEFENSE COUNSEL DID NOT INVESTIGATE ALIBI EVIDENCE, DID NOT OBJECT TO EVIDENCE WHICH HAD BEEN RULED OFF LIMITS, AND DID NOT IMPEACH THE COMPLAINANT WITH INCONSISTENT TESTIMONY, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defense counsel’s failure to investigate alibi evidence, failure to object to evidence which had been ruled off limits, and failure to impeach the complainant constituted ineffective assistance:

Under the circumstances of this case, where the determination of guilt hinged on sharp issues of credibility, we find that trial counsel lacked a strategic or legitimate justification for the failure to investigate the defendant’s alleged alibi defense … , and to present evidence to impeach the complainant’s testimony as to the duration and frequency of the alleged abuse … . Further, trial counsel failed to impeach the complainant with her sworn testimony given in the grand jury, which contradicted her trial testimony in various respects … . Notwithstanding a pretrial ruling by the court precluding the People from eliciting testimony regarding an early 2010 conversation about the alleged abuse between the complainant and her friend, trial counsel failed to object when such testimony was elicited at the trial. As such, counsel failed in his duty to protect the defendant’s interests by objecting to the People’s introduction of inadmissible evidence … . People v Ramos, 2021 NY Slip Op 03200, Second Dept 5-19-21

 

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THE EVIDENCE IDENTIFYING DEFENDANT AS ONE OF THE ROBBERS WAS LEGALLY SUFFICIENT BUT DEFENDANT’S CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the evidence identifying defendant as one of the robbers was legally sufficient but the conviction was against the weight of the evidence:

… [T]he police officer who spoke with the complainant outside the deli testified that the only description given of the perpetrators was four male Hispanics, one with a bleach-blond beard, and that the complainant never mentioned that one of the perpetrators was wearing a bandana. After speaking with the complainant, the officer, accompanied by the complainant, crossed the street and entered the park where the robbery had occurred. The defendant, who was wearing a black shirt and sitting on a bench approximately 100 feet from where the crime took place, was the only person in the park. The officer walked up to the defendant, who did not flee or offer any resistance, told him to stand, and placed him in handcuffs. Upon searching the defendant, the officer found a bandana depicting the Mexican flag in his pocket. According to the arresting officer, upon seeing the bandana, the complainant told the officer for the first time that one of the perpetrators had been wearing a similar bandana. The complainant’s wallet and its contents were never recovered. * * *

In this single-witness identification case, an acquittal would not have been unreasonable. While the defendant was found in possession of a distinctive-looking bandana in close spatial and temporal proximity to the scene of the robbery, none of the police witnesses testified that the complainant had mentioned the existence of such a bandana prior to the defendant’s arrest. Moreover, the record evidence does not explain why the police would have expected to find one of the suspects in the park, when the complainant himself testified that the four suspects left together after the robbery. We also find it significant that the complainant testified that he had seen the man with the bandana on two occasions prior to the night of the robbery, yet he also testified that he had never seen the defendant before the night of the robbery, and in fact identified one of the codefendants in court as the man with the bandana. People v Garcia, 2021 NY Slip Op 03196, Second Dept 5-19-21

 

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DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER HE SHOULD BE OFFERED ALCOHOL AND SUBSTANCE ABUSE TREATMENT AS AN ELEMENT OF HIS SENTENCE; THE ISSUE SURVIVED DEFENDANT’S GUILTY PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on whether he is eligible for judicial diversion, i.e., alcohol or substance abuse treatment as an element of sentencing:

… “[A]ppellate review of the defendant’s claim that his application for judicial diversion was improperly denied is not foreclosed by his plea of guilty” … .

Pursuant to CPL 216.05(3)(a), upon receipt of a completed alcohol and substance abuse evaluation report … either the People or an “eligible defendant” … , may request a hearing on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment … .

… [T]he Supreme Court improvidently exercised its discretion in denying the defendant’s motion without first conducting a hearing pursuant to CPL 216.05(3)(a) on the issue of whether the defendant should be offered alcohol or substance abuse treatment. It is undisputed that the defendant is an “eligible defendant” as defined in CPL 216.00(1), and that an “alcohol and substance abuse evaluation” as defined in CPL 216.00(2) was completed. Based upon the conclusions contained in that evaluation, the court should have granted that branch of the defendant’s motion which was for a hearing on the issue of whether he should be offered alcohol or substance abuse treatment … . People v Commissiong, 2021 NY Slip Op 03193, Second Dept 5-19-21

 

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MANDAMUS PETITION TO COMPEL JUDGES TO ISSUE A WRITTEN ORDER DECIDING PETITIONER’S MOTION TO REARGUE HIS MOTION TO VACATE HIS CONVICTION GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, granted the petition to compel judges to issue a written order denying petitioner’s motion to reargue a motion to vacate his conviction:

Under the circumstances of this case, the petitioner demonstrated a clear legal right to a written order determining his motion for leave to reargue his prior motion pursuant to CPL 440.10, in the action entitled People v Cruz … and mandamus properly lies to compel the respondents to issue that written order, as well as an order determining the petitioner’s motion to reargue the “bench decision” … . Matter of Cruz v D’Emic, 2021 NY Slip Op 03175, Second Dept 5-19-21

 

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THE PEOPLE FAILED TO TIMELY REDUCE THE BOND OBLIGATION TO A JUDGMENT, THEREFORE THE SURETY’S MOTION TO VACATE THE JUDGMENT FORFEITING THE $100,000 BAIL SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Renwick, determined the surety’s motion to vacate a judgment forfeiting $100,000 bail should have been granted. Although the surety’s (Empire’s) motion was untimely, the People had failed to timely reduce the bond obligation to a judgment. The opinion is too detailed to fairly summarize here:

In this special proceeding brought pursuant to CPLR 5015 by a surety of a defendant in a criminal case, the dispositive question is whether a surety is procedurally precluded from moving to vacate a judgment of bail forfeiture as untimely made. The People argue that the application is precluded because the surety did not move within the one-year time limit applicable to a motion for remission of the forfeiture, which, as set forth in CPL 540.30(2), “must be made within one year after the forfeiture of bail is declared.” We answer the question in the negative because the People must first comply with the statutory mandate of CPL 540.10(2) before they can raise the one-year statute of limitations of CPL 540.30(2). The People did not comply with CPLR 540.10(2), which requires the People to reduce a bond obligation to a judgment within 120 days after the forfeiture is declared by the court. People v Empire Bonding & Ins. Co., 2021 NY Slip Op 03120, First Dept 5-13-21

 

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