You are here: / Criminal Law
, ,

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

 

,

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

 

, ,

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

 

, ,

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

 

,

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

 

, ,

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

 

, ,

A WHEEL CAME OFF DEFENDANT’S TRUCK CAUSING A FREAK ACCIDENT INVOLVING TWO OTHER VEHICLES RESULTING IN THE DEATH OF A DRIVER; THE CRIMINALLY NEGLIGENT HOMICIDE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; AT MOST, DEFENDANT FAILED TO PERCEIVE THE RISK CREATED BY A NOISY WHEEL (FOURTH DEPT).

The Fourth Department, reversing defendant’s criminally negligent homicide conviction, determined the evidence was against the weight of the evidence. Apparently, a wheel came off defendant’s truck, another truck hit the wheel and overturned on a car, killing the driver:

The testimony at trial established that defendant came into possession of the pickup truck several weeks before the accident, but that its last valid inspection was three years before the accident. Although the People established that the pickup truck had a forged inspection sticker, there was no evidence that defendant knew it was forged. Several witnesses testified that, in the three days preceding the accident, the pickup truck was making loud grinding noises and that, either the day before the accident or the day of the accident, defendant asked a person with mechanical experience what that person thought might be the issue. That person opined that the noise was likely being caused by a wheel or the brakes.

An inspection of the driver’s side wheel and truck after the accident established some significant problems with the wheel, and witnesses testified that the existence of problems would have been noticeable and would have created issues with steering. The testimony also established, however, that the severity of the problems could not have been known to the operator unless the wheel was removed from the truck. * * *

At most, the evidence established that defendant failed to perceive a risk, which does establish criminal negligence beyond a reasonable doubt … . People v Pinnock, 2020 NY Slip Op 06884, Fourth Dept 11-20-20

 

,

THE PEOPLE DEMONSTRATED THE EXERCISE OF DUE DILIGENCE IN ATTEMPTING TO LOCATE THE DEFENDANT; DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court on the People’s appeal, determined the indictment should not have been dismissed on speedy trial grounds because the People demonstrated the exercise of due diligence in attempting to locate the absent defendant:

In computing the time within which the People must be ready for trial, the court must exclude, inter alia, the period of delay resulting from defendant’s absence (see CPL 30.30 [4] [c] [i]). “A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence” (id.). …

… [W]e conclude that the People established that they exercised due diligence in attempting to locate defendant during the time period at issue at the hearing. Law enforcement officers routinely checked computer databases, social media outlets, criminal history reports and information from other government agencies to attempt to identify locations where defendant might be located. In addition, officers investigated all of the addresses associated with defendant to varying degrees, speaking with maintenance workers, neighbors, tenants, and defendant’s mother. In attempting to conduct subsequent interviews with defendant’s mother, law enforcement officers learned that she no longer resided at the same address. Law enforcement officers also contacted and spoke with all of defendant’s known employers. Although law enforcement officers did not conduct a full investigation of one address that appeared on one credit agency report, one of the officers testified at the hearing that credit reports were not reliable because “anyone . . . could go apply for a credit card online today and write [any address] on the application.” Without any corroboration of defendant’s affiliation with that address, the officer did not investigate beyond driving to the address and verifying that it was a commercial and retail building. Ultimately … the officers’ periodic database searches yielded a potential address in Georgia.

“[N]otwithstanding the fact that greater efforts could have been undertaken”… , we conclude that the People established that they exercised the requisite due diligence in attempting to locate defendant during the time period at issue … . People v Anderson, 2020 NY Slip Op 06881, Fourth Dept 11-20-20

 

, ,

ORDER ADJUDICATING DEFENDANT A LEVEL TWO SEX OFFENDER WAS DEFECTIVE; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the order adjudicating defendant a level two sex offender was defective:

County Court failed to comply with Correction Law § 168-n (3), pursuant to which the court was required to set forth the findings of fact and conclusions of law upon which it based its determination. The standardized form order—which the court merely read into the record when rendering its oral decision—indicated without elaboration that the court was entirely adopting the case summary and risk assessment instrument prepared by the Board of Examiners of Sex Offenders, listed the risk factor point assessments contained therein, and denied in conclusory fashion defendant’s request for a downward departure. That was inadequate to fulfill the statutory mandate … . We therefore hold the case, reserve decision, and remit the matter to County Court for compliance with Correction Law § 168-n (3). People v Gatling, 2020 NY Slip Op 06921, Fourth Dept 11-20-20

 

, ,

POLICE OFFICER’S OPINION A HOMICIDE HAD BEEN COMMITTED AND THE VICTIM’S MOTHER’S TESTIMONY ABOUT THE VICTIM’S PERSONAL BACKGROUND SHOULD NOT HAVE BEEN ADMITTED; OPINION ISSUE REVIEWED IN THE INTEREST OF JUSTICE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s manslaughter conviction, determined the investigating officer’s opinion that the death was a homicide and the victim’s mother’s testimony about the personal background of the victim should not have been admitted:

Defendant’s contention that County Court erred in allowing an investigating police officer to testify regarding his opinion that a homicide was committed in this case is preserved for our review only in part … . To the extent that defendant’s contention is unpreserved, we exercise our power to review it as a matter of discretion in the interest of justice … , and we conclude that the court erred in admitting that testimony because it ” ‘usurp[ed] the jury’s fact-finding function’ ” … .

We further agree with defendant that the court erred in permitting the victim’s mother to testify regarding the victim’s personal background, including various aspects of the victim’s life and his family relationships. It is well settled that “testimony about [a] victim[‘s] personal background[] that is immaterial to any issue at trial should be excluded” … and, here, the testimony of the victim’s mother regarding the victim’s personal background was not relevant to a material issue at trial. People v Salone, 2020 NY Slip Op 06903, Fourth Dept 11-20-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy