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THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT PROVIDES NO BROADER SCOPE FOR THE SEARCH THAN WOULD A WARRANT ISSUED BASED ON THE SAME FACTS; HERE THE SMALL AMOUNT OF MARIJUANA ON THE CONSOLE OF DEFENDANT’S CAR DID NOT PROVIDE PROBABLE CAUSE TO SEARCH THE TRUNK WHERE A FIREARM WAS FOUND (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court and holding that decisions to the contrary should no longer be followed, determined the odor of marijuana smoke and the small about of marijuana on the console of the defendant’s car did not, pursuant to the automobile exception to the warrant requirement, justify the full search of the trunk of the car. Therefore the firearm found in the trunk should have been suppressed:

… “[T]he automobile exception. . . is an exception only to the warrant requirement; it does not, in contrast to the search-incident-to-arrest exception, dispense with the requirement that there be probable cause to search the vehicle” … . * * *

We are left with the question of whether the presence of a small amount of marijuana consistent with personal use provided the requisite probable cause and nexus to justify a search of the trunk. We find that in this case it did not. The only reasonable conclusion supported by the evidence here was that the de minimis amount of unburnt marijuana was for personal use, not for distribution or trafficking. The officer did not find any drug paraphernalia in the car. Indeed, in this case, there was “scant evidence of drugs in the car” … , and there was no probable cause to believe there was contraband in the trunk of the car. Therefore, because a proper search pursuant to the automobile exception “is no narrower-and no broader-than [sic] the scope of a search authorized by a warrant supported by probable cause, [and] otherwise is as the magistrate could authorize” … , we find that here the search of the trunk was not supported by probable cause. Consequently, the gun found therein, and the statements made by defendant thereafter, should have been suppressed. People v Ponder, 2021 NY Slip Op 02880, First Dept 5-6-21

 

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A VALID WAIVER OF APPEAL PRECLUDES AN APPEAL ALLEGING THE VIOLATION OF DEFENDANT’S RIGHT TO AN OPPORTUNITY TO MAKE A PERSONAL STATEMENT AT SENTENCING (CT APP).

The Court of Appeals, in a brief memorandum decision, over an extensive two-judge dissent, determined a waiver of appeal precluded an appeal alleging the violation of defendant’s right to an opportunity to make a personal statement at sentencing:

… [D]efendant’s contention that his CPL 380.50(1) right to an opportunity to make a personal statement at sentencing was violated is not reviewable because such a claim did not survive the valid appeal waiver. Although the statutory right is “deeply rooted” and “substantial,” its value is largely personal to defendant … . Defendant’s claim does not fall among the narrow class of nonwaivable defects that undermine “the integrity of our criminal justice system . . . [or] implicate . . . a public policy consideration that transcends the individual concerns of a particular defendant to obtain appellate review” … . Moreover, despite defendant’s arguments to the contrary, a valid unrestricted waiver of appeal elicited during a plea proceeding can preclude appellate review of claims that have “not yet reached full maturation,” including those arising during sentencing … , nor is this challenge to presentence procedures reviewable under the illegal sentence exception … . People v Brown, 2021 NY Slip Op 02867, CtApp 5-6-21

 

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THE USE OF TRANSLATORS TO DOCUMENT INFORMATION IN AN ACCUSATORY INSTRUMENT DID NOT RENDER THE INSTRUMENTS FACIALLY INSUFFICIENT BY ADDING A LAYER OF HEARSAY (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined that the use of translators in documenting information in an accusatory instrument did not create an additional layer of hearsay. The three accusatory instruments at issue, therefore, were deemed facially sufficient. Two of the accusatory instruments did not refer to the use of a translator, and the third did:

… “[I]n evaluating the sufficiency of an accusatory instrument,” a court does “not look beyond its four corners (including supporting declarations appended thereto)” ( … see CPL 100.15 [3]; 100.40 [1] [c] …). Courts must “not rely on external factors to create jurisdictional defects not evident from the face of the” accusatory instrument … . Instead, “[w]hether the allegation of an element of an offense is hearsay, rendering the information defective, is to be determined on a facial reading of the accusatory instrument” … ..

Defects that do not appear on the “the face of the” accusatory instrument are “latent deficienc[ies]” that do not require dismissal … . * * *

We conclude that, when evaluating the facial sufficiency of an accusatory instrument, no hearsay defect exists where … the four corners of the instrument indicate only that an accurate, verbatim translation occurred, and the witness or complainant adopted the statement as their own by signing the instrument after the translation … . People v Slade, 2021 NY Slip Op 02866, CtApp 5-6-21

 

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THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined counsel’s failure to ask for a downward departure in the SORA risk level assessment proceeding did not amount to ineffective assistance of counsel:

Assuming arguendo that in hindsight, the defendant’s counsel, instead of simply opposing the People’s request for an upward departure from the Board’s assessment of points, also should have expressly argued for a downward departure from the assessment of points contained in the People’s RAI, the omission was not so egregious or prejudicial as to deprive the defendant of the effective assistance of counsel … . The defendant has neither demonstrated the absence of a strategic or other legitimate explanation for counsel’s failure to request a downward departure, nor even addressed that issue in the pro se supplemental brief, as is necessary to sustain an ineffectiveness claim … . Further, depictions on the defendant’s phone included young girls who were toddlers to age seven, including those engaged in sexual intercourse and oral sex with men. Under these circumstances, a downward departure would not have been appropriate given “the number and nature of the images possessed by the defendant” … . People v Carman, 2021 NY Slip Op 02834, Second Dept 5-5-21

 

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THE EVIDENCE RELIED UPON BY COUNTY COURT TO DENY DEFENDANT’S RESENTENCING PURSUANT TO THE DRUG LAW REFORM ACT (DLRA) WAS NOT SUFFICIENT TO OVERCOME THE STATUTORY PRESUMPTION FAVORING RESENTENCING (SECOND DEPT).

Second Department, reversing County Court, determined the evidence relied upon by County Court was not sufficient to overcome the statutory presumption in favor of resentencing pursuant to the Drug Law Reform Act (DLRA):

Where, as here, a defendant is eligible for resentencing relief pursuant to the 2004 DLRA and CPL 440.46, there is a statutory presumption in favor of resentencing …  . Although resentencing is not mandatory, there is a presumption that th.e defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like those committed by the defendant was excessively harsh … .

Under the circumstances of this case, the factors relied upon by the County Court in denying the motion, including the defendant’s criminal history, the quantity of drugs involved in the underlying offenses, and the defendant’s disciplinary infractions while incarcerated, were insufficient to overcome the statutory presumption … . People v Williams, 2021 NY Slip Op 02831, Second Dept 5-5-21

 

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THE LAW OF THE CASE DOCTRINE PRECLUDED SUPREME COURT’S CONSIDERATION OF ADDITIONAL EVIDENCE TO JUSTIFY SENTENCING DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER; THE APPELLATE COURT HAD SENT THE MATTER BACK FOR RESENTENCING AFTER FINDING PERSISTENT VIOLENT FELONY OFFENDER STATUS WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the law of the case doctrine precluded precluded Supreme Court from considering additional evidence and finding the incarceration tolling period was sufficient to permit sentencing defendant as a persistent violent felony offender. The Second Department, on a prior appeal, had found the tolling period insufficient and sent the matter back for resentencing:

“The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” … . “An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court” … , and “‘forecloses reexamination of [an issue previously determined] absent a showing of newly discovered evidence or a change in the law'” … .

Here, this Court previously determined, on the merits, that the defendant’s incarceration dates did not amount to a sufficient tolling period so as to qualify the March 27, 1987 conviction as a predicate violent felony under Penal Law § 70.04(1)(b)(iv) and (v). The People had a full and fair opportunity to litigate this issue both at the initial hearing before the Supreme Court in 2013, and before this Court on appeal … . People v Kaval, 2021 NY Slip Op 02823, Second Dept 5-5-21

 

DEFENDANT COMMITTED CRIMES IN ONE COUNTY AND LED THE POLICE ON A CAR CHASE WHICH ENDED IN ANOTHER COUNTY; SOME OF THE CHARGES STEMMED FROM THE CAR CHASE; THE JUDGE SHOULD NOT HAVE INSTRUCTED THE JURY THAT THE PEOPLE HAD GEOGRAPHIC JURISDICTION OVER ALL THE COUNTS IF THE PEOPLE HAD JURISDICTION OVER ONE COUNT (SECOND DEPT).

The Second Department, ordering a new trial on some of the charges, determined the judge should not have instructed the jury that finding the People had geographic jurisdiction over one count proved the county with jurisdiction over all counts. Defendant had fled the scene of the murder and led the police on a chase which ended in a different county. The counts at issue stemmed from the car chase:

“The defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise” … . “The burden is on the People to prove by a preponderance of the evidence that the county where the crime is prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable” … , insofar as is relevant here, “an appropriate criminal court of a particular county” has jurisdiction of an offense where “[c]onduct occurred within such county sufficient to establish . . . [a]n element of such offense.” “[G]enerally it is for the jury to decide, as a matter of fact, the place where the crime was committed or any other fact relevant to venue” … .

Here, upon submitting the issue of venue regarding counts three, four, and seven to the jury, the Supreme Court “incorrectly instructed that a finding of geographic jurisdiction on one count effectively provided the County with jurisdiction over all the other counts” … . This error cannot be deemed harmless. Because a defendant is entitled to have a jury, not the court, determine factual issues regarding venue, “[i]t is not enough that the record contains evidence” that an element of the offense occurred in the county asserting jurisdiction … . Rather, “it must appear from the instructions or by necessary implication from the verdicts that the jury made a finding of proper venue” … . People v Crumb, 2021 NY Slip Op 02816, Second Dept 5-5-21

 

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ALTHOUGH THE EVIDENCE OF SERIOUS PHYSICAL INJURY WAS INSUFFICIENT, THE EVIDENCE DEFENDANT INTENDED TO INFLICT SERIOUS PHYSICAL INJURY WAS SUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).

The Second Department, reducing defendant’s gang assault, assault and robbery convictions to attempted gang assault, assault and robbery, determined the evidence of serious physical injury was insufficient, but the evidence of an intent to inflict serious physical injury was sufficient. The victim was attacked and slashed but no internal organs were injured:

Viewing the evidence in the light most favorable to the prosecution… , we find that the evidence was not legally sufficient to establish the defendant’s guilt on these counts. Although the complainant was stabbed multiple times, there was no evidence of serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ … .

However, the evidence at trial also established beyond a reasonable doubt that the defendant acted with the intent to inflict serious physical injury and came “dangerously near” to committing the completed crimes … . Accordingly, we modify the judgment by reducing the defendant’s convictions of gang assault in the first degree, assault in the first degree, robbery in the first degree under Penal Law § 160.15(1), and assault in the second degree to attempted gang assault in the first degree, attempted assault in the first degree, attempted robbery in the first degree, and attempted assault in the second degree, respectively, and we remit the matter to the Supreme Court, Queens County, for sentencing. People v Aragundi, 2021 NY Slip Op 02811, Second Dept 5-5-21

 

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WITHOUT EVIDENCE THE TWO POSSESSION-OF-A-WEAPON CHARGES RELATED TO DISTINCT EVENTS, CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, reversing the convictions and vacating the sentences, determined there was no evidence the two possession-of-a-weapon charges were based upon distinct events. Therefore consecutive sentences should not have been imposed:

County Court should not have imposed consecutive sentences upon the defendant’s conviction of the two counts of criminal possession of a weapon in the third degree. Sentences imposed for two or more offenses may not run consecutively where, among other things, “a single act constitutes two offenses” … . Here, there was no showing that the defendant’s acts underlying the crimes were separate and distinct and consequently, consecutive sentences could not be imposed (see Penal Law § 70.25[2 … ).

Under the particular circumstances of this case, we reverse the judgments of convictions, vacate the sentences imposed thereon, and remit the matters … for further proceedings, at which the People should be given the opportunity to withdraw their consent to the plea agreement, should they be so advised … . People v Adams, 2021 NY Slip Op 02808, Second Dept 5-5-21

 

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DEFENDANT, A POLICE OFFICER, WAS PROPERLY CONVICTED OF ASSAULT FOR REPEATEDLY PUNCHING THE VICTIM AFTER THE VICTIM WAS HANDCUFFED AND RESTRAINED FACE DOWN ON THE FLOOR (FIRST DEPT).

The First Department upheld the assault and offering a false instrument for filing convictions of a police officer who unnecessarily repeatedly struck the victim after the victim was handcuffed and restrained:

The evidence supports the court’s finding that defendant, an experienced police officer, lacked a reasonable ground to believe that it was necessary to punch the victim repeatedly to prevent the victim from biting him, both when the victim was rear-cuffed and lying face down on the floor of an apartment building lobby and being effectively restrained by defendant and another officer, and after defendant subsequently brought the victim to the building’s rear stairwell without seeking the assistance of any of the other officers present (see Penal Law §§ 35.05[1], 35.15[1], 35.30[1][a]). The evidence also supports the conclusion that all of defendant’s punches were unjustified, and also supports the alternative conclusion that even if the initial punch were justified, the subsequent punches were unjustified, and these punches caused additional injury … .

The evidence also established that defendant intentionally caused concededly false statements or information to be written on officially filed forms … . People v Saladeen, 2021 NY Slip Op 02760, First Dept 5-4-21

 

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