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CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE IS NOT AN ARMED FELONY; MATTER REMITTED FOR A NEW YOUTHFUL OFFENDER STATUS DETERMINATION (SECOND DEPT).

The Second Department determined defendant was eligible for youthful offender status because criminal possession of a weapon third degree is not an armed felony:

The Supreme Court denied the defendant’s application for youthful offender status based upon its mistaken belief that he had been convicted of an armed felony, which required the court to find either mitigating circumstances that bear directly upon the manner in which the crime was committed or that the defendant was only a minor participant in the crime (see CPL 720.10[3]). The People correctly concede that the court erred in finding that the defendant had been convicted of an armed felony, since criminal possession of a weapon in the third degree pursuant to Penal Law 265.02(7) does not require proof that the firearm was loaded (see CPL 1.20[41] …). Thus, the defendant was eligible for youthful offender treatment without any finding of mitigation (see CPL 720.10[2]). Accordingly, we remit the matter … for a new determination of the defendant’s application for youthful offender status and resentencing thereafter. People v Javon L., 2020 NY Slip Op 07094, Second Dept 11-25-20

 

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EVIDENCE OF A 1990 ROBBERY AND SEXUAL ASSAULT TO PROVE IDENTITY SHOULD NOT HAVE BEEN ADMITTED; THE SIMILARITIES WERE NOT STRONG ENOUGH (SECOND DEPT).

The Second Department, reversing defendant’s attempted rape conviction, determined the evidence of a 1990 robbery and sexual assault should not have been admitted as evidence of the identity of the perpetrator. But the burglary, robbery and sexual abuse convictions, apparently stemming from the same incident, were not disturbed:

… [T]he similarities between the alleged 1990 robbery and sexual assault and the attack on the complainant were not sufficiently unique or unusual and did not establish a distinctive modus operandi relevant to establishing the defendant’s identity as the perpetrator in this case. While both incidents involved robberies and sexual assaults of unaccompanied Caucasian women, during daytime hours, in the lobbies of residential buildings, these similarities were not so unique as to give rise to an inference that the perpetrator of each crime was the same individual … . Accordingly, the Supreme Court erred in permitting the People to present evidence regarding the 1990 robbery and assault in order to establish the defendant’s identity … .

The error was harmless as to all of the charges except the attempted rape in the first degree since the proof of the defendant’s guilt, without reference to the erroneously admitted Molineux evidence, was overwhelming as to those other charges, and there was no reasonable possibility that the jury would have acquitted the defendant on those charges had it not been for the error … . Furthermore, the erroneous admission of the Molineux evidence did not deprive the defendant of a fair trial … . We reach a different conclusion with respect to the defendant’s conviction of attempted rape in the first degree. Because the evidence of the defendant’s guilt of that charge was not overwhelming, the error cannot be deemed harmless, and the defendant’s conviction of that charge must be vacated and a new trial ordered as to that charge … . People v Duncan, 2020 NY Slip Op 07090, Second Dept 11-25-20

 

THE DE BOUR STREET STOP REQUIREMENTS, NOT THE TRAFFIC STOP REQUIREMENTS, APPLY TO THE APPROACH OF A PERSON IN A STATIONARY CAR WITH THE ENGINE RUNNING (THIRD DEPT).

The Third Department noted that a police officer (Meskill) approaching a person in a parked car is subject to the De Bour requirements for a street stop, not a traffic stop:

With respect to the initial encounter, unlike a stop of a moving vehicle — which must be based upon reasonable suspicion of criminal activity … or probable cause to believe that a traffic violation has occurred  … — “[a] police approach to an occupied, stationary vehicle is subject to the first level of the De Bour analysis” and is justified if “supported by an objective, credible reason, not necessarily indicative of criminality” … . There is no dispute here that Meskill was authorized to approach defendant’s vehicle in response to a citizen-requested welfare check upon observing him slumped over with the engine running. People v Spradlin, 2020 NY Slip Op 06982, Third Dept 11-25-20

 

A DEFENDANT MAY PLEAD GUILTY TO A CRIME WHICH IS A LEGAL IMPOSSIBILITY OR FOR WHICH THERE IS NO FACTUAL BASIS AS LONG AS IT IS SUBJECT TO A LESSER PENALTY THAN THE CHARGED OFFENSE(S) (THIRD DEPT).

The Third Department noted that a defendant may plead guilty to a crime which is a legal impossibility and for which there is no factual basis, as long as it is a reduced charge:

Assuming without deciding that defendant is correct in claiming that his incarceration rendered any attempt to possess the pills recovered from his residence a legal impossibility, that was no bar to him “plead[ing] guilty to a nonexistent crime in satisfaction of an [accusatory instrument] charging a crime for which a greater penalty may be imposed” … . To the extent that defendant’s argument may also be construed as a claim that it was factually impossible for him to commit the crime, and assuming that such an argument survives his appeal waiver … , a factual basis is not required for a guilty plea to a reduced charge … . People v Bonacci, 2020 NY Slip Op 06980, Third Dept 11-25-20

 

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AN ALLEGED CONTROLLED SUBSTANCE WAS NOT IN PLAIN VIEW IN THE VEHICLE; THEREFORE THE WARRANTLESS SEARCH OF A CLOSED CONTAINER IN THE VEHICLE, WHICH REVEALED A WEAPON, WAS NOT JUSTIFIED; WEAPONS CHARGES DISMISSED (SECOND DEPT).

The Second Department, dismissing the weapons charges, determined the search of defendant’s vehicle was not justified. The officer (Chowdhury) saw the top of a prescription bottle, pulled the bottle out of a pouch, determined it contained a controlled substance, a searched a closed container to find the weapon:

Chowdhury observed “two clear cups of brown liquid, alcohol” in the cup holders in the vehicle’s front console and smelled an odor of alcohol emanating from the vehicle. Chowdhury asked the defendant and an individual in the front passenger seat to exit the vehicle, and they complied. Chowdhury further testified that the rear passenger side door was open and that, with the aid of a flashlight, he observed the “white top” of a prescription bottle sticking out of the pouch on the back of the front passenger seat. Chowdhury then entered the vehicle, pulled the bottle out, and observed that it was clear, with no prescription label, and had unlabeled white pills inside that Chowdhury and [officer] Carrieri identified as Oxycodone. Carrieri then began searching the vehicle for any weapons or other contraband and found a handgun inside of a closed compartment under the rug behind the driver’s seat. The defendant was arrested, and later made a statement to the police regarding the gun. …

The Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress the gun and his statement. The officers’ observations of the brown liquid in the cups in the front console and the smell emanating from the vehicle gave them probable cause to suspect a violation of Vehicle and Traffic Law § 1227, which prohibits the possession of open containers containing alcohol in a vehicle located upon a public highway, and would have justified their entry into the vehicle to seize the cups of liquid and search for additional open containers … . However, since there was nothing from Officer Chowdhury’s observation of the top of the prescription bottle located in the seat pocket that indicated that the bottle contained contraband, there was no justification for his removal of the bottle and detailed inspection of it and its contents or for the subsequent search of the car for weapons or other contraband. Chowdhury testified that it was only after he pulled the bottle out of the pouch and pulled upward on the top of it that he was able to see that it was unlabeled and contained what he identified as Oxycodone. Thus, contrary to the People’s contention, it cannot be said that a suspected controlled substance was in plain sight … . People v Boykin, 2020 NY Slip Op 07085, Second Dept 11-25-20

 

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THE APPLICATION FOR A WARRANT FOR THE SEARCH OF DEFENDANT’S CELL PHONE DID NOT PROVIDE PROBABLE CAUSE FOR THE SEARCH; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined the application for a warrant to search defendant’s cell phone did not provide probable cause for the search:

At the time of the arrest, a cell phone was recovered from the defendant’s person. Shortly thereafter, the arresting officer submitted an affidavit in support of an application for a warrant to search the cell phone. In relevant part, the officer averred that individuals involved in robberies and other crimes “utilize mobile telephones to facilitate their illegal activities,” and opined, without further elaboration or factual support, that the cell phone recovered on the defendant’s person “possesses information concerning the communications related to the instant robbery,” “had been utilized to speak with co-conspirators, suppliers and/or customers in furthering illegal activities,” and contained “information that would lead to further apprehensions.” …

… [T]he arresting officer’s conclusory statement that the cell phone contained information relevant to the robbery was bereft of any supporting factual allegations—hearsay or otherwise—and, therefore, plainly insufficient to establish probable cause … . Although the arresting officer later testified, at trial, that he had observed photographs of a gun on the cell phone at the time of the defendant’s arrest, such information—which arguably could have established probable cause provided it had been lawfully obtained … —was never included in the officer’s supporting affidavit. Under these circumstances, the warrant application did not provide a reasonable factual basis for the issuance of the warrant … . People v Boothe, 2020 NY Slip Op 07084, Second Dept 11-25-20

 

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THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION VACATED; UNPRESERVED ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT). ​

The Second Department, vacating the assault second conviction, considering the issue in the interest of justice, determined the evidence of physical injury was legally insufficient:

Viewing the evidence in the light most favorable to the prosecution … , it was legally insufficient to establish, beyond a reasonable doubt, that the child complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain”… . The several witnesses described only a minor injury, stated variously that they saw “a redness” on the child’s cheek, or a slight swelling under his eye and cheek, or a bruise to the right cheek, which was treated with a cold pack. Nor did the record support a finding that the child complainant experienced substantial pain because he experienced only tenderness for one to two hours after the incident. Accordingly, there was insufficient evidence that the child complainant suffered a “physical injury” within the meaning of Penal Law § 10.00(9) … . People v Bernazard, 2020 NY Slip Op 07083, Second Dept 11-25-20

 

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CONVERSATIONS ABOUT AND PLANNING OF THE MURDER OF DEFENDANT’S WIFE AND MOTHER-IN-LAW DID NOT CONSTITUTE LEGALLY SUFFICIENT EVIDENCE OF ATTEMPTED MURDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissent, determined the evidence of attempted first and second degree murder was legally insufficient. Defendant’s conversations and planning with a feigned confederate did not constitute an “actual step” toward killing his wife and mother-in-law:

… [T]he only conduct to be considered is defendant’s own acts because his purported accomplice [MS], who was working with the authorities, did not take any steps toward furthering the planned murders other than listening to defendant’s scheme. MS did not, for example, acquire the instrumentality for the crimes (such as drugs or poison), verify the existence of the keys and obtain them from the stated location, or stake out the address supplied by defendant to make sure that the wife and mother-in-law were present at the location specified. Nevertheless, the People, mostly by parsing defendant’s communications with MS, argue that defendant engaged in sufficient conduct by: (1) promising to provide a house to MS; (2) giving MS the purported address of the targets; (3) instructing MS when to carry out the murders; (4) providing MS with a hand-drawn map of the location of the third party’s house, where MS was to drop off the children after the murders; (5) handing MS a detailed plan of how to carry out the murders; (6) telling MS the location of the keys to the house; (7) calling MS’s girlfriend to arrange for MS to visit the jail; (8) writing a fake suicide note; (9) showing MS the suicide note; and (10) creating a prearranged code to discuss the postmortem over the recorded jail phone.

Not only are these acts “preparatory in a dictionary sense” … , they are also limited to the planning stages of committing the offense: they specify the who, what, where, when, and how of defendant’s murder plans. Notably absent are any acts that can be deemed to bring the crimes dangerously close to completion. People v Lendof-Gonzalez, 2020 NY Slip Op 06940, CtApp 11-24-20

 

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IN THESE THREE CASES, CONFINING LEVEL THREE SEX OFFENDERS WHO ARE ELIGIBLE FOR RELEASE FROM PRISON UNTIL COMPLIANT HOUSING IS AVAILABLE WAS NOT A CONSTITUTIONAL VIOLATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over two separate dissenting opinions, determined, in the three cases before the court, confining level three sex offenders who are eligible for release from prison until compliant housing is available was not a constitutional violation:

In these appeals, we consider constitutional challenges to the practice of temporarily confining level three sex offenders in correctional facilities, after the time they would otherwise be released to parole or postrelease supervision (PRS), while they remain on a waiting list for accommodation at a shelter compliant with Executive Law § 259-c (14). In each case, we conclude that there was no constitutional violation. People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 2020 NY Slip Op 06934, CtApp 11-23-20

 

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SEX OFFENDERS SUBJECT TO POSTRELEASE SUPERVISION MAY BE HOUSED IN A RESIDENTIAL TREATMENT FACILITY BEYOND THE SIX-MONTH STATUTORY PERIOD BEFORE COMPLIANT HOUSING HAS BEEN FOUND (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge dissent, determined that sex offenders under a period of postrelease supervision (PRS) maybe housed in a residential treatment facility (RTF) after the statutory six-month period has expired and before compliant housing has been found:

This appeal presents us with a question of statutory interpretation. Penal Law § 70.45 (3) provides that, “notwithstanding any other provision of law, the board of parole may impose as a condition of postrelease supervision (PRS) that for a period not exceeding six months immediately following release from the underlying term of imprisonment the person be transferred to and participate in the programs of a residential treatment facility (RTF).” Correction Law § 73 (10), in turn, authorizes the Department of Corrections and Community Supervision (DOCCS) “to use any [RTF] as a residence for persons who are on community supervision,” which includes those on PRS (see Correction Law § 2 [31]). The question before us is whether Correction Law § 73 (10) authorizes DOCCS to provide temporary housing in an RTF to sex offenders subject to the mandatory condition set forth in the Sexual Assault Reform Act (SARA) (see Executive Law § 259—c [14]) after the six-month period specified in Penal Law § 70.45 (3) has expired but before the offender on PRS has located compliant housing. We conclude that it does. People ex rel. McCurdy v Warden, Westchester County Corr. Facility, 2020 NY Slip Op 06933, Ct App 11-23-20

 

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