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DEFENDANT SHOULD HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER RE TWO COUNTS OF CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE, WHICH ARE NOT VIOLENT FELONIES (FOURTH DEPT).

The Fourth Department determined the sentences for two counts of criminal possession of a weapon third degree, D felonies, were illegal:

… [T]he determinate terms of incarceration of seven years imposed on counts 2 and 10 of the indictment, for criminal possession of a weapon in the third degree, class D felonies, are illegal. Those crimes are not violent felonies (see generally Penal Law § 70.02 [1] [c]), and therefore, the court should have sentenced defendant as a second felony offender on those counts and imposed indeterminate terms of incarceration (see § 70.06 [3] [d]; [4] [b]). Furthermore, inasmuch as defendant must be sentenced to indeterminate terms of incarceration, he is not subject to a period of postrelease supervision on those counts (see § 70.45 [1 …). People v Lovette, 2020 NY Slip Op 06892, Fourth Dept 11-20-20

 

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THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A PRIOR UNCHARGED SHOOTING; DEFENSE COUNSEL DID NOT OPEN THE DOOR FOR THAT EVIDENCE; THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO TREAT THE PEOPLE’S WITNESSES AS HOSTILE WITNESSES; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of attempted murder and ordering a new trial, determined evidence of a prior uncharged shooting should not have been admitted and the prosecutor should not have been allowed to cross-examine the People’s witnesses as hostile witnesses:

County Court erred by permitting the prosecutor to present evidence of a prior uncharged shooting under the theory that defense counsel opened the door to such evidence … . …

… [T]he ‘opening the door’ theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination” … . Instead that “principle merely allows a party to explain or clarify on redirect matters that have been put in issue for the first time on cross-examination, and the trial court should normally exclude all evidence which has not been made necessary by the opponent’s case in reply” … . * * *

The prosecutor … assumed the risk of the adverse testimony by “calling the witness[es] . . . in the face of the forewarning” [about what they would say]. … [A]t the time of the relevant questioning, the court had not granted the prosecutor permission to treat either witness as hostile … . … [T]he prosecutor improperly “use[d the] prior statement[s] for the purpose of refreshing the recollection of the witness[es] in a manner that disclose[d their] contents to the trier of the facts” (CPL 60.35 [3]). People v Sylvester, 2020 NY Slip Op 06891, Fourth Dept 11-20-20

 

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A FINDING DEFENDANT SUFFERS FROM A MENTAL ABNORMALITY CANNOT BE BASED SOLELY ON A FINDING DEFENDANT SUFFERS FROM ANTI-SOCIAL PERSONALITY DISORDER (ASPD); REFUSAL OF DEFENDANT’S REQUEST FOR A JURY INSTRUCTION TO THAT EFFECT WAS REVERSIBLE ERROR; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT ADJUDICATING HIM A SEX OFFENDER REQUIRING CIVIL MANAGEMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the jury in this Mental Hygiene Law sex-offender civil-commitment trial should have been instructed that the anti-social personality disorder (ASPD) diagnosis cannot, standing alone, support a finding defendant has a mental abnormality as defined in the Mental Hygiene Law. The fact that the Pattern Jury Instructions do not include an instruction on this issue is not a justification for failing to give the instruction:

Mental Hygiene Law 10.03 defines “Mental abnormality” as a “congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.” In Matter of State of New York v Donald DD (24 NY3d 174 [2014]), the Court of Appeals expressly held: “evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality as defined by Mental Hygiene Law § 10.03(i), when it is not accompanied by any other diagnosis of mental abnormality” … . …

Where [as here] the jury is asked to parse through multiple psychological diagnoses, which include ASPD, the jury should be instructed that ASPD cannot be the sole basis for its finding that someone suffers from a mental abnormality. This is to ensure that the jury’s finding conforms to the applicable law. Absent such an instruction, the jury may mistakenly find mental abnormality based solely on ASPD without the requisite finding of an additional diagnosis of a condition or disorder that, combined with ASPD, may predispose one to commit a sex offense. Matter of State of New York v David S., 2020 NY Slip Op 06876, First Dept 11-19-20

 

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THE TRAFFIC STOP WAS BASED ON A COMPUTER-GENERATED “SIMILARITY HIT;” AT THE SUPPRESSION HEARING THE PEOPLE DID NOT MEET THEIR BURDEN OF GOING FORWARD BECAUSE THE BASIS OF THE “SIMILARITY HIT” WAS NOT DEMONSTRATED; THIS PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, determined the People did not meet their burden of going forward at the suppression hearing because they did not make a minimum showing of reasonable suspicion for the traffic stop. Whether the People meet that burden has been deemed a question of law which the Court of Appeals can address. Whether a stop was justified by reasonable suspicion is usually a mixed law and fact question which the Court of Appeals can not review. Here the traffic stop was based on a so-called “similarity hit” generated by the Department of Motor Vehicles database. A “similarity hit” apparently indicates some possible connection between the registered owner of a vehicle and an outstanding warrant. But, at the suppression hearing, the People did not present any evidence of the basis for the “similarity hit;”

According to the officer, a “similarity hit” is generated “based on the name of the registered owner, the date of birth[,] and other aliases.” He testified that the system considers “certain parameters” when identifying “similarity hits,” but he did not know how the Department of Motor Vehicles set those parameters. Nor did he testify as to any specifics of this match.

… [T]he officer did not think that the driver was the subject of the “similarity hit” because the driver was female and the registered owner was male. As the officer stepped around the vehicle to look at the registration and inspection stickers, he spotted a handgun on the floor under the front passenger seat, in which defendant was sitting. After defendant was arrested, the officer checked the MDT [mobile data terminal] information and discovered that the person with the warrant did not, in fact, match the vehicle’s registered owner or anyone else in the vehicle. The officer did not testify as to the name, date of birth, or address of the registered owner, or provide the specific identifying facts of the person set forth in the arrest warrant. …

While information generated by running a license-plate number through a government database may provide police with reasonable suspicion to stop a vehicle …, the information’s sufficiency to establish reasonable suspicion is not presumed … . Thus, when police stop a vehicle based solely on such information, and the defendant, as here, challenges its sufficiency, the People must present evidence of the content of the information … . People v Balkman, 2020 NY Slip Op 06838, CtApp 11-19-20

 

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EVEN IF THE OFFICER WERE WRONG ABOUT WHETHER A NON-FUNCTIONING CENTER BRAKE LIGHT VIOLATES THE VEHICLE AND TRAFFIC LAW, THE OFFICER’S INTERPRETATION OF THE LAW WAS OBJECTIVELY REASONABLE; THEREFORE THE STOP WAS VALID AND THE SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing the Appellate Term, over a concurring memorandum, a concurring opinion, and two dissenting opinions, determined the police officer who stopped defendant reasonably believed the non-functioning center brake light violated the Vehicle and Traffic Law. Therefore the stop was valid and the DWI evidence should not have been suppressed. The Vehicle and Traffic Law requires at least two functioning brake lights. Here there were two functioning lights but the center brake light was not working:

We conclude that the officer’s interpretation of the Vehicle and Traffic Law was objectively reasonable. Vehicle and Traffic Law § 375 (40) (b) mandates that motor vehicles manufactured after a certain date be “equipped with at least two stop lamps, one on each side, each of which shall display a red to amber light visible at least five hundred feet from the rear of the vehicle when the brake of such vehicle is applied.” Vehicle and Traffic Law § 376 (1) (a) prohibits, in relevant part, (1) operating a vehicle “during the period from one-half hour after sunset to one-half hour before sunrise, unless such vehicle is equipped with lamps of a type approved by the commissioner which are lighted and in good working condition”; and (2) operating a vehicle at any time “unless such vehicle is equipped with signaling devices and reflectors of a type approved by the commissioner which are in good working condition.” Vehicle and Traffic Law § 375 (19), in turn, prohibits the operation of a motor vehicle on highways or streets if the vehicle “is defectively equipped and lighted.” Taken together, these provisions could reasonably be read to require that all lamps and signaling devices be in good working condition, and that all equipment and lighting be non-defective, regardless of whether a vehicle is actually required to be equipped with those lamps, signaling devices, equipment, or lights. Even assuming the officer was in fact mistaken on the law, it was nevertheless objectively reasonable to conclude that defendant’s non-functioning center brake light violated the Vehicle and Traffic Law … . Because any error of law by the officer was reasonable, there was probable cause justifying the stop … . People v Pena, 2020 NY Slip Op 06836, CtApp 11-19-20

 

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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT RAISED A QUESTION WHETHER DEFENSE COUNSEL SHOULD HAVE INFORMED HIM OF AN AFFIRMATIVE DEFENSE TO THE ROBBERY FIRST CHARGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea based on ineffective assistance of counsel. Defendant raised a question whether he should have been informed about the an affirmative defense to robbery first degree, i.e., that the object displayed during the crime was not a loaded, operable weapon:

A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty … . That requirement is met under the New York State Constitution when defense counsel provides “meaningful representation” … . In cases asserting ineffective assistance of counsel in the context of a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial, or that the outcome of the proceedings would have been different” … .

It is an affirmative defense to a charge of robbery in the first degree under Penal Law § 160.15(4) that the object displayed during the course of the crime “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” … . The defendant’s averments in his affidavit in support of his motion, along with the PSR, were sufficient to warrant a hearing on the issue of whether his counsel was ineffective for failing to advise him of this potential affirmative defense to the charges to which he pleaded guilty … . People v Flinn, 2020 NY Slip Op 06809, Second Dept 11-18-20

 

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THE CONVICTION FOR GRAND LARCENY BY FALSE REPRESENTATION WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; THERE WAS NO EVIDENCE DEFENDANT RECEIVED ADDITIONAL FUNDS AFTER MAKING THE ALLEGED FALSE REPRESENTATION AND NO EVIDENCE DEFENDANT INTENDED TO APPROPRIATE THE FUNDS AT THE TIME THE ALLEGED FALSE REPRESENTATION WAS MADE (SECOND DEPT).

The Second Department found defendant’s grand-larceny-by-false-representation conviction was against the weight of the evidence. There was no evidence defendant received any additional money after making the alleged false representation and no evidence defendant intended to appropriate the funds at the time the alleged false representation was made:

… [T]he complainant testified that she was unable to send large amounts of money to Peru and had asked the defendant to assist her with sending money to her family in Peru. She testified that on November 3, 2014, she gave the defendant $11,000 to $12,000 to transfer to her family in Peru and approximately $40 for his assistance. She testified that she accompanied the defendant to four different money transfer agencies. However, according to the complainant’s testimony, she learned on November 4, 2014, that the money transfers did not go through due to an error she had made in the recipient’s name. The complainant testified that the defendant was able to fix two of the transactions over the phone and agreed to meet her the next day, November 5, 2014, to go to the other two money transfer agencies (hereinafter the subject money transfer agencies) to correct the mistake in the recipient’s name. She testified that the defendant did not meet her on November 5, 2014, she subsequently learned that her family never received the funds from the subject money transfer agencies, and the defendant had withdrawn the money without her permission. Business records from the subject money transfer agencies indicated that the transactions had been cancelled with the money refunded. Representatives from the subject money transfer agencies testified that their policies required cancellations to be done in person by the person who initiated the transaction.

On appeal, the defendant contends that the evidence was legally insufficient to establish that he obtained the subject funds by means of a false representation and that he had the requisite intent not to perform at the time he made the representation that he would meet the complainant and help her fix the recipient’s name on the transactions at the subject money transfer agencies. People v Bravo, 2020 NY Slip Op 06804, Second Dept 11-18-20

 

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DEFENDANT’S PRESENCE NEAR A SUSPECTED DRUG HOUSE IN A HIGH CRIME AREA GAVE RISE TO ONLY A GROUNDED SUSPICION; THE ATTEMPT TO STOP THE CAR IN WHICH DEFENDANT WAS A PASSENGER WAS NOT JUSTIFIED BY REASONABLE SUSPICION; THE MOTION TO SUPPRESS THE SEIZED EVIDENCE AND THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN GRANTED; DEFENDANT’S GUILTY PLEA, WHICH ENCOMPASSED AN UNRELATED OFFENSE, WAS VACATED IN ITS ENTIRETY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s denial of a suppression motion and vacating defendant’s guilty plea, determined  defendant’s presence near a suspected drug house gave rise only to a founded suspicion which would justify an approach and a common inquiry by the police. Instead, the police attempted to stop the car in which defendant was a passenger and arrested defendant after he ran into his residence. Cocaine and heroin were seized from the defendant. The Fourth Department held that all the seized evidence and the showup identification should have been suppressed. In addition, the court vacated the entire guilty plea which encompassed an unrelated offense:

A detective who could see only the front area of the residence to be searched observed multiple people whom he suspected to be customers arrive at and depart from the back area of the residence through the driveway. The detective also twice saw defendant come to the front yard of the residence to smoke a cigarette then return to the back area. Defendant eventually left the residence as a passenger in a vehicle. The detective conveyed the vehicle’s plate number and direction of travel to an officer in a “take down” car, who followed defendant and attempted to effect a stop of the vehicle by activating the patrol vehicle’s lights. The vehicle in which defendant was a passenger slowed and defendant jumped out and fled on foot into his own residence, where he was arrested soon after and found to be in possession of cocaine and heroin. …

Based on defendant’s proximity to a suspected drug house and his otherwise innocuous behavior … , the officer had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted him to approach defendant and make a common-law inquiry … . The mere fact that defendant was located in an alleged high crime area “does not supply that requisite reasonable suspicion, in the absence of ‘other objective indicia of criminality’ . . . , and no such evidence was presented at the suppression hearing” … . …

… [A]lthough defendant’s conviction of a second count of criminal possession of a controlled substance in the fifth degree arises from a separate incident, his plea of guilty “was expressly conditioned on the negotiated agreement that [he] would receive concurrent sentences on the separate counts to which he pleaded,” and thus the plea must be vacated in its entirety … . People v Martinez-Gonzalez, 2020 NY Slip Op 06593, Fourth Dept 11-13-20

 

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THE ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STOP AND FRISK OF DEFENDANT WAS NOT JUSTIFIED; THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction after trial and dismissing the indictment, in a full-fledged opinion by Justice Troutman, over a concurring opinion, determined the robbery conviction was against the weight of the evidence and the showup identification should have been suppressed. The opinion is comprehensive, well worth study, and cannot be fairly summarized here:

… [T]here is considerable objective evidence supporting defendant’s innocence. Defendant was found standing in a driveway half a mile from the crime scene only seven minutes after it occurred, wearing clothing different from the clothing worn by the gunman. He was not in possession of the fruits of the crime or of a firearm. There was no testimony that he was out of breath or that he displayed other signs of having recently run a distance. To the contrary, his boots were not even laced. The possibility that he changed clothes and hid the items in his companion’s residence across the street was questionable in the first instance given the timing of the events, and was severely undercut by the fact that the police obtained permission to search the residence and did so without finding anything linking defendant to the crime. Furthermore, the police investigation established that a person other than defendant possessed the fruits of the robbery, particularly the victim’s cell phone, and that person’s act in fleeing from the police when the phone alarm sounded was indicative of consciousness of guilt … . Other objective evidence, particularly the dog tracking, established that the gunman never turned west off of Genesee Street toward the place where defendant was found, but continued to run down Genesee Street in a southerly direction. * * *​

The testimony of the officer who initiated this street encounter established that he explored only “one of” several side streets in a residential neighborhood and seized the first young black man in a hooded sweatshirt who he found. It must be plainly stated—the law does not allow the police to stop and frisk any young black man within a half-mile radius of an armed robbery based solely upon a general description.

FROM THE CONCURRENCE:

In my view, reversal is required here solely on the ground that Supreme Court erred in refusing to suppress the showup identification testimony because it was not sufficiently attenuated from the police officer’s unlawful stop and detention of defendant … . People v Miller, 2020 NY Slip Op 06667, Fourth Dept 11-13-20

 

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THE OFFICER WHO STOPPED THE CAR IN WHICH DEFENDANT WAS A PASSENGER AFTER HEARING GUN SHOTS DID NOT HAVE THE REASONABLE SUSPICION NEEDED FOR THE SEIZURE OF A VEHICLE; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the indictment, determined the police did not have reasonable suspicion justifying the stop of the car in which defendant was a passenger. The seized evidence should have been suppressed. The officer who stopped the car had heard gunshots, drove in the direction of the shots, passed two intersecting streets, and then saw defendant’s car moving slowly:

Considering the “totality of the circumstances” here … , we conclude that the People failed to establish the legality of the police conduct … . As noted, the People established that the police stopped the vehicle less than two minutes after hearing the shots fired, the incident occurred in the early morning hours, the police did not see any pedestrian or vehicular traffic other than the subject vehicle after the shots were fired, and the vehicle was found in proximity to the location of the shots fired. The police, however, were not given a description of the vehicle involved or even informed whether there was a vehicle involved … , the officer did not give any testimony regarding whether he saw any pedestrian or vehicle traffic before hearing the shots fired … , and the vehicle was not fleeing from the area where shots were fired … . Rather, the subject vehicle was simply a vehicle that was in the general vicinity of the area where shots were heard … . As the officer correctly recognized, the police had a founded suspicion that criminal activity was afoot to justify a common-law right to inquire … , but they did not have the required reasonable suspicion to justify the seizure of the vehicle. People v Fitts, 2020 NY Slip Op 06654, Fourth Dept 11-13-20

 

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