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AN OFFICER MAY FOLLOW A SUSPECT IN A POLICE VEHICLE; THE OFFICER DID NOT GET OUT OF HIS VEHICLE AND CHASE THE DEFENDANT UNTIL HE SAW THE DEFENDANT DISCARD A WEAPON; THE SEIZURE OF THE WEAPON WAS NOT THE RESULT OF UNLAWFUL POLICE CONDUCT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant did not discard a weapon in response to unlawful police conduct. Therefore the weapon should not have been suppressed. In response to a 911 call a police officer in a car was observing the defendant. The officer pursued the defendant only after he saw the defendant discard a weapon:

As the … officer approached the scene, he observed defendant in a black coat walking westbound on the sidewalk. Upon seeing the third officer in his vehicle, defendant ran down a driveway. The … officer pulled into the driveway of that residence and, while still in the vehicle, observed defendant toss what appeared to be a long-barreled handgun over the fence while he ran. It was at that point that the third officer exited his vehicle and chased defendant, ultimately apprehending him. A loaded .22-caliber firearm was found on the ground in the backyard adjacent to the driveway.

… “[A]]n officer may use his or her vehicle to unobtrusively follow and observe an individual without elevating the encounter to a level three pursuit” … . A police-civilian encounter will escalate to a level three encounter, i.e., a forcible stop or seizure, “whenever an individual’s freedom of movement is significantly impeded . . . Illustrative is police action which restricts an individual’s freedom of movement by pursuing one who, for whatever reason, is fleeing to avoid police contact” … .

Here, the … officer had activated his emergency lights en route to the scene and before he encountered defendant. Upon observing defendant walking on the sidewalk, the third officer stopped his vehicle in a driveway. At no point did the third officer engage in any particularized act toward defendant or restrict his freedom of movement … . People v Moore, 2021 NY Slip Op 00927, Fourth Dept 2-11-21

 

SYNTHETIC MARIJUANA IS NOT “DANGEROUS CONTRABAND” WITHIN THE MEANING OF THE “PROMOTING PRISON CONTRABAND” STATUTES (FOURTH DEPT).

The Fourth Department, reducing defendant’s conviction of promoting prison contraband first degree to second degree, determined that synthetic marijuana did not meet the definition of “”dangerous contraband:”

The Court of Appeals has “conclude[d] that the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” … . “Generally, dangerous contraband refers to weapons . . . Items that facilitate escape are also dangerous contraband” (id. [internal quotation marks omitted]). Conversely, small amounts of marihuana, “unlike other contraband such as weapons, are not inherently dangerous and the dangerousness is not apparent from the nature of the item” … . Additionally, we note that the substance at issue here is a synthetic drug that mimics the effects of THC, the active ingredient in marihuana, and “the conclusion that . . . small amounts of marihuana . . . are not dangerous contraband is informed by the Legislature’s more lenient treatment of marihuana offenses, as opposed to those involving other drugs” … . People v Mclamore, 2021 NY Slip Op 00926, Fourth Dept 2-11-21

 

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THE FAILURE TO INFORM DEFENDANT AT THE TIME OF THE PLEA THAT HIS SENTENCE WOULD INCLUDE A SPECIFIC PERIOD OF POSTRELEASE SUPERVSION REQUIRED VACATION OF THE PLEA; BECAUSE THE DEFENDANT DID NOT RECEIVE TIMELY NOTICE OF THE POSTRELEASE SUPERVISION, PRESERVATION OF THE ERROR WAS NOT NECESSARY (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant should have been informed that postrelease supervision (PRS) would be part of his sentence. Under the circumstances preservation of the error for appeal was not necessary:

Pursuant to the plea agreement, defendant entered his plea in exchange for a promise of youthful offender adjudication and a sentence of probation. Following the entry of the plea, the court informed defendant that, if he violated the terms of the plea agreement, the court would “not keep the promise [it] made regarding [his] sentence” and that it could “impose a much more significant or higher sentence.” The court did not specify what that higher sentence could entail, nor did it mention the possibility of postrelease supervision (PRS).

Prior to sentencing, defendant violated the terms of the plea agreement when he failed to cooperate with the probation department and was arrested on new felony charges. The court held a hearing pursuant to People v Outley (80 NY2d 702 [1993]) and determined that there was a valid basis on which to enhance the sentence. The prosecutor then requested that the court sentence defendant as an adult and impose a sentence of 15 years of incarceration with five years of PRS. The court imposed a determinate sentence of 7½ years of incarceration plus five years of PRS.

The court was required “to advise defendant that his enhanced sentence would include PRS, and was also required to specify the length of the term of PRS to be imposed” … . Although defendant did not object to the imposition of PRS or move to withdraw his plea or to vacate the judgment of conviction, this case falls under an exception to the preservation rule inasmuch as “[t]he prosecutor’s mention of PRS immediately before sentencing was not the type of notice under People v Murray (15 NY3d 725 [2010]) that would require defendant to preserve the issue” … . People v Stanley, 2021 NY Slip Op 00924, Fourth Dept 2-11-21

 

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USING ANOTHER’S CREDIT CARD ACCOUNT NUMBER TO MAKE PURCHASES, WITHOUT PHYSICAL POSSESSION OF THE CARD, SUPPORTS A GRAND LARCENY CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined that using a credit card number without physically possessing the credit card itself supported the grand larceny conviction:

The primary question presented by this appeal is whether the definition of credit card for purposes of Penal Law § 155.00 (7) includes the credit card account number, such that the People need not prove that a defendant physically possessed the tangible credit card in order to support a conviction of grand larceny based upon credit card theft. Here, defendant’s conviction of grand larceny in the fourth degree was based on defendant’s theft of the victim’s credit card account number to purchase goods, although there was no evidence that defendant possessed the physical card itself. We conclude that the definition of credit card in General Business Law § 511 (1), as supplemented by General Business Law § 511-a, is the controlling definition as designated by Penal Law § 155.00 (7) and, as a result, the evidence is legally sufficient to support defendant’s conviction of grand larceny for stealing an intangible credit card account number. People v Badji, 2021 NY Slip Op 00897, CtApp 2-11-21

 

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THE EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS AND PARAPHERNALIA IN AN APARTMENT IN WHICH DEFENDANT WAS PRESENT WAS INSUFFICIENT; DEFENDANT’S CONVICTION WAS THEREFORE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction after a bench trial, determined the evidence that defendant constructively possessed drug and paraphernalia was insufficient. The “possession” convictions, therefore, were against the weight of the evidence:

Although defendant was present in the apartment at the time the police executed the search warrant, no other evidence was presented “to establish that defendant was an occupant of the apartment or that he regularly frequented it” … . Two of the police officers testified that they did not discover anything that belonged to defendant on the premises. The clothing, cell phone, and identification found on the premises belonged instead to other men who were present in the apartment during the execution of the search warrant. Photographs found on the premises included the other men but not defendant. While defendant admitted that he had been at the apartment on one other occasion, the evidence did not otherwise specifically connect defendant to the apartment in which the contraband was found. We thus conclude that the weight of the evidence does not support a finding that defendant “exercised dominion and control over the [contraband] by a sufficient level of control over the area in which [it was] found” … . People v Ponder, 2021 NY Slip Op 00923, Fourth Dept 2-11-21

 

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THE WARRANT CORRECTLY DESCRIBED THE PREMISES TO BE SEARCHED AS A SINGLE FAMILY RESIDENCE BASED UPON THE INFORMATION AVAILABLE TO THE POLICE; DEFENDANT’S ALLEGATION THE RESIDENCE WAS ACTUALLY THREE SEPARATE APARTMENTS WAS NOT SUPPORTED BY SWORN AFFIDAVITS; THE MOTION TO SUPPRESS WAS PROPERLY DENIED WITHOUT A HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the defendant’s motion to suppress, alleging the premises to be searched was not adequately described in the warrant, was properly denied without a hearing. The warrant described a single family residence. Defendant alleged each of the three floors was a separate apartment. The Court of Appeals looked only at the evidence supporting the warrant and held the evidence available to the police established the building was a single residence. The defendant did not submit any sworn affidavits in support of the “three apartments” argument, so the motion court properly denied the motion without holding a hearing:

The warrant’s description of the place to be searched as “a private residence,” located at a unique, specified street address, was not facially deficient; given a commonsense reading, the warrant clearly commanded a search of “a” single residence, not a multi-unit building, at the marked street address. Because the warrant was facially sufficient, the case does not implicate the U.S. Supreme Court’s ruling in Groh v Ramirez that courts may not rely on documents not incorporated and attached to the warrant in order to provide particularity that the warrant, on its face, lacks (see 540 US at 557-558). The motion court did not rely on the unincorporated warrant application materials to cure a facial deficiency in the warrant, which Groh forbids. Rather, the court considered those materials for a different purpose—to determine whether the warrant’s description of the place to be searched as a single private residence was supported by the information available to the detective who applied for the warrant and the court that issued the warrant. * * *

In People v Mendoza, we held that a suppression motion’s “factual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and defendant’s access to information” (82 NY2d at 422; see also People v Jones, 95 NY2d 721, 729 [2001]). Although [defendant] lacked access to the materials that were before the warrant court, he had ready access to information about the actual conditions of the premises at the time of the search, but failed to provide it in support of his suppression motion. For example, he, his mother, or any other resident of the premises could have provided sworn affidavits or other evidence as to the separateness of the alleged residences on the three floors; the existence of unrelated tenants on the second floor; the obviousness to a visitor that the building contained separate residences—such as allegations that each unit had separate locking entry doors—or a variety of other types of evidence plainly known to residents of the house. People v Duval, 2021 NY Slip Op 00896, CtApp 2-11-21

 

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DEFENDANT PLED GUILTY TO DRIVING WHILE IMPAIRED BY DRUGS, NOT ALCOHOL; DIRECTION TO INSTALL AN IGNITION INTERLOCK DEVICE APPLIES ONLY TO OFFENSES INVOLVING ALCOHOL (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the offense to which defendant pled guilty did not involve alcohol and, therefore, the direction to install an ignition interlock device must be vacated:

… [T]he County Court improperly imposed an ignition interlock device requirement upon the defendant. The defendant pleaded guilty to aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2-a)(b) for “[d]riving while ability impaired by drugs” (Vehicle and Traffic Law § 1192[4]). A court may impose an ignition interlock device as a condition of probation and conditional discharge only for offenses involving alcohol (see Penal Law § 65.10[2][k-1]). The defendant’s conviction here falls outside the scope of the statute authorizing the imposition of such a condition … . People v Miller, 2021 NY Slip Op 00868, Second Dept 2-10-21

 

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ALTHOUGH AN INDICTMENT NEED NOT ALLEGE ACCESSORIAL LIABILITY TO BE LEGALLY SUFFICIENT; WHERE THERE IS NO EVIDENCE A DEFENDANT ACTED AS A PRINCIPAL THE JURY MUST BE INSTRUCTED ON ACCESSORIAL LIABILITY; THE FAILURE TO SO INSTRUCT THE JURY HERE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the failure to instruct the jury on accessorial liability rendered the conviction against the weight of the evidence. The defendant and a companion were involved in an altercation with the victim. The companion slashed the victim and struck the victim with a baseball bat. There was no evidence defendant attacked the victim. The court noted that the indictment need not allege accessorial liability to be legally sufficient, but the jury must be instructed on the theory where there is no evidence a defendant acted as a principal:

The circumstances supported the inference that defendant was guilty of acting in concert in the attack, but undisputedly failed to support liability as a principal, that is, for personally attacking the victim. However, the prosecutor did not request, either before or after the court’s charge, that the court instruct the jury regarding accessorial liability (see Penal Law § 20.00), and the court did not give such an instruction.

Because there is “no legal distinction between liability as a principal or criminal culpability as an accomplice” … , an indictment need not contain any language relating to accessorial liability. However, this does not mean that a conviction may be sustained on an acting-in-concert theory when no such theory was submitted to the jury … . People v Ballo, 2021 NY Slip Op 00810, First Dept 2-9-21

 

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THE SEXUAL ASSAULT REFORM ACT (SARA), WHICH REQUIRES THAT CERTAIN SEX OFFENDERS RESIDE IN SARA-COMPLIANT HOUSING (AWAY FROM SCHOOL GROUNDS) UPON RELEASE FROM PRISON DOES NOT APPLY TO SEX OFFENDERS WHO HAVE BEEN ADJUDICATED YOUTHFUL OFFENDERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, in a full-fledged opinion by Justice Bannister, determined the conditions imposed by the Sexual Assault Reform Act (SARA) requiring certain sex offenders live in SARA-compliant housing upon release (away from school grounds) does not apply to those sex offenders who are adjudicated youthful offenders:

A “sex offender,” as defined in the Correction Law, “includes any person who is convicted of any of the [enumerated offenses]” … . A “sex offense” is defined as “a conviction of or a conviction of an attempt to commit [an enumerated crime]” … Additionally, the school grounds mandatory condition as set forth in Penal Law § 65.10 (4-a) (a) expressly applies only to those persons convicted of the enumerated offenses.

When a sentencing court adjudicates a defendant a youthful offender, however, the conviction is “deemed vacated and replaced by a youthful offender finding” … . CPL 720.35 (1) states that a youthful offender adjudication “is not a judgment of conviction for a crime or any other offense,” which is in keeping with the “legislative desire not to stigmatize youths [adjudicated youthful offenders] . . . with criminal records triggered by hasty or thoughtless acts” … . Thus, by definition, a youthful offender is not a convicted sex offender and does not fall within the category of persons intended to be restricted under SARA. People ex rel. Suarez v Superintendent, Livingston Corr. Facility, 2021 NY Slip Op 00705, Fourth Dept 2-5-21

 

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THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY TO ENSURE DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL FOR THE SORA HEARING WAS KNOWING, INTELLIGENT AND VOLUNTARY; THE NOTICE OF THE SORA HEARING PROVIDED TO DEFENDANT WAS INADEQUATE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge did not conduct the required inquiry to ensure defendant’s waiver of his right to counsel for the SORA hearing was knowing, intelligent and voluntary. The Fourth Department also noted that notice of the SORA hearing provided to the defendant was inadequate:

…[D]efendant’s purported waiver of the right to counsel is invalid. “It is well settled that defendants have a statutory right to counsel in SORA proceedings” … . In order for a defendant to validly waive his right to counsel, “the court must undertake a ‘searching inquiry . . . aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel’ ” … . Such an inquiry ensures that the defendant’s waiver is ” ‘made competently, intelligently and voluntarily’ ” … .

Here, County Court failed to conduct the necessary searching inquiry and, instead, relied upon defendant’s notation on the form notice he received about his SORA classification proceeding that he did “not wish to have counsel appointed.” …

… [T]he form notice provided to [defendant] about his SORA classification contained numerous deficiencies. The notice did not fully describe the SORA hearing or the consequences that would follow if defendant failed to appear … . It also appears that the court failed to provide defendant with a “copy of the recommendation received from the [Board of Examiners of Sex Offenders] and any statement of the reasons for the recommendation” … . In providing the requisite notice to defendants pursuant to section 168-n (3), courts should be tracking the language used in that statute instead of giving a shortened summary. People v Huntley, 2021 NY Slip Op 00688, Fourth Dept 2-5-21

 

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