You are here: / Criminal Law

COUNTY COURT’S ORDER MODIFIED TO ALLOW WITHHOLDING THE NAMES OF THE CONFIDENTIAL INFORMANT AND UNDERCOVER OFFICERS UNTIL TRIAL AND RESTRICTING ACCESS TO THE AUDIO AND VIDEO RECORDINGS OF THE NARCOTICS SALES (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the name of the confidential informant can be withheld until trial, the names of the undercover officers can be withheld until trial, and audio and video recordings of the narcotics sales can only be shown to defense counsel at the prosecutor’s office:

… [T]he order is modified by … granting the People’s motion for a protective order to the extent that (1) disclosure of the audio and video recordings of the narcotics sales shall be made to defense counsel only, to be viewed at the prosecutor’s office, (2) disclosure of the name and contact information of the confidential informant shall be delayed until the commencement of trial, and (3) disclosure of the names and work affiliation of the undercover personnel shall be delayed until the commencement of trial … . People v Singh, 2020 NY Slip Op 05479, Second Dept 10-6-20

 

,

THE POLICE DID NOT HAVE REASONABLE SUSPICION TO JUSTIFY THE TRAFFIC STOP AND DID NOT HAVE PROBABLE CAUSE TO ARREST AT THE TIME DEFENDANT GOT OUT OF THE CAR; THE STATEMENTS MADE BY DEFENDANT AND THE COCAINE SEIZED FROM HIS PERSON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing the convictions related to statement which should have been suppressed, determined the police did not have reasonable suspicion to justify a traffic stop and did not have probable to handcuff the defendant, a de facto arrest, when he got out of the car. Therefore the statements which led to the search and seizure of cocaine, as well as the seized cocaine, should have been suppressed:

Inasmuch as the officer conducting the surveillance and directing the stop of defendant “did not see what the defendant and [the alleged buyer] exchanged, could not see if one of the [participants] gave the other something in return for something else, and did not see money pass between the two [individuals],” we conclude that the officers detaining defendant lacked reasonable suspicion to do so … .

… Although the use of handcuffs does not automatically transform a defendant’s detention into a de facto arrest … , such use must be justified by some additional circumstances, such as a threat of evasive conduct … . …

… [T]here was no testimony that the officer who handcuffed defendant “reasonably suspect[ed] that he [was] in danger of physical injury by virtue of [defendant] being armed” … . “[T]he test for determining whether a defendant is in custody or has been subjected to a de facto arrest is ‘what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant’s position’ ” … . People v Hernandez, 2020 NY Slip Op 05321, Fourth Dept 9-30-20

 

,

DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM THE DECISION WHETHER TO TESTIFY WAS HIS TO MAKE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a hearing was required on defendant motion to vacate his conviction alleging defense counsel was ineffective for failing to inform him the decision whether to testify was defendant’s to make:

… [T]he court erred in denying his motion without a hearing with respect to whether defense counsel fulfilled his duty of advising defendant that his decision to testify was ultimately his own, not defense counsel’s, to make (see People v Cosby, 82 AD3d 63, 66 [4th Dept 2011], lv denied 16 NY3d 857 [2011]). Defendant has made a proper showing for a hearing by asserting a viable legal basis for the motion, substantiated by his own unrefuted sworn allegations and other evidentiary submissions … , and neither the mandatory denial provisions of CPL 440.10 (2) nor the permissive denial provisions of CPL 440.10 (3) apply to this case … . Cosby, relied on by both the court and the People in support of denying the motion, is distinguishable from this case inasmuch as a hearing pursuant to CPL 440.30 (5) was held in Cosby, thereby permitting us to determine on the merits that defendant was not deprived of his constitutional right to effective assistance of counsel and, consequently, that his right to a fair trial was not seriously compromised … . No such determination on the merits can be made on the record before us. We therefore reverse the order and remit the matter to Supreme Court for a hearing pursuant to CPL 440.30 (5) on that part of defendant’s motion. People v Mirabella, 2020 NY Slip Op 05388, Fourth Dept 10-2-20

 

,

THE APPEAL WAS HELD IN ABEYANCE AND THE MATTER WAS SENT BACK FOR A RECONSTRUCTION HEARING ON WHETHER DEFENSE COUNSEL CONSENTED TO ANNOTATIONS ON THE VERDICT SHEET; THE RECONSTRUCTION HEARING WAS HELD BUT SUPREME COURT DID NOT MAKE A RULING; THE MATTER WAS REMITTED AGAIN FOR THE RULING (FOURTH DEPT). ​

The Fourth Department, holding the appeal in abeyance, had sent the matter back for a reconstruction hearing on whether defense counsel consented to annotations on the verdict sheet. The hearing was held but Supreme Court did not make a ruling. So the matter was remitted for that purpose:

We previously held this case, reserved decision, and remitted the matter to Supreme Court “to determine, following a hearing if necessary, whether defense counsel consented to the annotated verdict sheet” … . Upon remittal, the court convened a reconstruction hearing, heard testimony of the parties’ trial counsel, and closed the hearing without making any determination. That was error. The intent of our prior decision was for the court to make a determination, not merely to conduct a hearing … . It is of course better for the hearing court, which has the advantage of seeing the witnesses and hearing their testimony, to make the determination following a reconstruction hearing, particularly where, as here, witness credibility is at issue … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court to determine whether defense counsel consented to the annotated verdict sheet … . People v Wilson, 2020 NY Slip Op 05385, Fourth Dept 10-2-20

 

,

WAIVER OF APPEAL OF THE UNDERLYING PLEA DOES NOT PROHIBIT APPEAL OF THE SENTENCE FOR A SUBSEQUENT VIOLATION OF PROBATION; NO PRESERVATION REQUIREMENT; APPELLATE COURT HAS POWER TO MODIFY A LEGAL SENTENCE (FOURTH DEPT).

The Fourth Department, reducing defendant’s sentence, noted that a waiver of appeal at the underlying plea proceeding did not prohibit the appeal of the severity of the sentence for a subsequent violation of probation. The court further noted there is no preservation requirement for the appeal of an excessive sentence:

… [E]ven if defendant executed a valid waiver of the right to appeal at the underlying plea proceeding, it would not encompass his challenge to the severity of the sentence imposed following his violation of probation … . Contrary to the People’s contention, defendant’s challenge to the severity of the sentence is not subject to a preservation requirement … . “A claim that a sentence is excessive is, by definition … , addressed to this Court’s interest of justice jurisdiction, and does not need to be preserved as a question of law … . Contrary to the People’s further contention, in reviewing that challenge, “it is inappropriate for this Court to address whether the sentencing court abused its discretion” … . Rather, this Court “has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range,” and such “sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court” … . We agree with defendant that the sentence is unduly harsh and severe under the circumstances of this case, and we therefore modify the sentence as a matter of discretion in the interest of justice to a determinate term of imprisonment of five years … . People v Kibler, 2020 NY Slip Op 05365, Fourth Dept 10-2-20

 

,

GRAND JURY EVIDENCE WAS SUFFICIENT TO SUPPORT THE STRANGULATION COUNT DESPITE THE ABSENCE OF A DEFINITION OF THE “STUPOR” ELEMENT OF THE OFFENSE (FOURTH DEPT).

The Fourth Department, reversing County Court on a People’s appeal and reinstating the strangulation count, determined the evidence before the grand jury was sufficient to charge strangulation. County Court had reduced the charge to criminal obstruction of breathing or blood circulation. County Court ruled the People had not presented evidence sufficient to support the theory the strangulation caused “stupor” citing the People’s failure to define the term:

In order to sustain the charge of strangulation in the second degree against defendant, the People were required to present to the grand jury legally sufficient evidence of the following three elements: (1) that defendant applied pressure on the throat or neck of the alleged victim; (2) that defendant did so with the intent to impede the normal breathing or circulation of the blood of the alleged victim; and (3) that defendant thereby caused stupor, loss of consciousness for any period of time, or any other physical injury or impairment to the alleged victim … .

… [T]he prosecutor’s instructions to the grand jury comported with the statute and mirrored the pattern criminal jury instructions … , and we conclude that the failure of the prosecutor to offer a definition of the term “stupor” did not impair the integrity of the grand jury proceedings or potentially prejudice defendant … .

… [T]he alleged victim testified before the grand jury that defendant “put both of his hands around [her] neck and choked [her] until [she] could barely breathe anymore” and “was starting to lose consciousness.” She was “pushed up against the wall and the door” and felt “[v]ery light-headed and kind of like—like there was a buzzing in [her] head and everything was starting to turn purple in [her] vision before—by the time [the alleged victim] got him to let go.”  People v Ruvalcaba, 2020 NY Slip Op 05354, Fourth Dept 10-2-20

 

,

ANONYMOUS 911 CALL JUSTIFIED TRAFFIC STOP; DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined an anonymous 911 call provided reasonable suspicion for a traffic stop, officer safety warranted handcuffing the defendant and seeing a rifle in the car provided probable cause for arrest. The dissent argued the anonymous 911 call did not justify the traffic stop:

… “[P]olice stops of automobiles in New York State are legal ‘when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime’ ” … . The evidence at the suppression hearing established that police officers were dispatched based on a 911 call reporting a group of people at a specific location, one of whom had been observed getting into a van while possessing “a long gun.” The dispatch provided the license plate number of a van in which the group had driven away from the location where they had been seen by the 911 caller. One or two minutes after the dispatch, one of the responding officers located the van in the area. The officer confirmed that the van’s license plate number matched the one provided in the dispatch, and he initiated a traffic stop. Contrary to defendant’s assertion, “the totality of the information known to the police at the time of the stop of [the van] ‘supported a reasonable suspicion of criminal activity . . . [, i.e.,] that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand’ ” … . In particular, we conclude that the 911 call as relayed in the dispatch “contained sufficient information about defendant[‘s] unlawful possession of a weapon to create reasonable suspicion” justifying the stop of the van … . People v Walls, 2020 NY Slip Op 05337, Fourth Dept 10-2-20

 

,

ALTHOUGH DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION AT THE ORIGINAL PLEA AND SENTENCING, HE WAS SO INFORMED AT RESENTENCING; DEFENDANT HAD AN OPPORTUNITY AT RESENTENCING TO MOVE TO WITHDRAW HIS PLEA AND THE SENTENCING JUDGE WAS NOT OBLIGATED TO INFORM DEFENDANT, SUA SPONTE, OF THE AVAILABILITY OF A MOTION TO WITHDRAW; DEFENDANT’S MOTION TO SET ASIDE HIS RESENTENCE PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion to set aside his resentence was properly denied. Defendant was not informed of the period of post-release supervision (PRS) at the time of the original plea and the original sentence, but was so informed at the resentence:

In 2002, defendant pleaded guilty without being informed of the mandatory postrelease supervision (PRS) component of the promised sentence … , and was sentenced in a proceeding in which the court also did not pronounce that component of the sentence … . Seven years later, he was returned to court with his attorney for further proceedings. Defense counsel advised the court that he had spoken to his client who was prepared to accept the amended sentence. The court explained that five years of PRS would be imposed. Defense counsel responded that that was fine. The court then resentenced defendant to a term that included the mandatory PRS period … .

… Defendant was not denied a meaningful opportunity, at resentencing, to seek to withdraw his plea based on the plea court’s failure to inform him that his sentence was required to include PRS. Generally, a defendant is entitled to an opportunity to withdraw a plea where a sentence exceeds the original promise. However, we find no support for defendant’s argument that this places a sua sponte obligation on the court to inform a counseled defendant of the right to move for plea withdrawal … . People v Perez, 2020 NY Slip Op 05297, First Dept 10-1-20

 

, ,

SOME RESTRICTIONS ON DISCLOSURE SHOULD HAVE BEEN IMPOSED BY COUNTY COURT (SECOND DEPT).

The Second Department, reversing County Court, determined some restrictions on making discovery available to the defense should have been imposed:

Applying the factors set forth in CPL 245.70(4), including the concerns for witness safety and protection, I conclude that the County Court improvidently exercised its discretion in denying the People’s request in its entirety. Under the particular facts and circumstances of this case … the County Court should have directed disclosure of the audio and video recordings of the narcotics sales be made available forthwith to defense counsel only, to be viewed at the prosecutor’s office. Additionally, the County Court should have delayed disclosure of the names, addresses, and contact information of the confidential informant and undercover personnel until the commencement of the trial. People v Zayas, 2020 NY Slip Op 05236, Second Dept 9-30-20

 

, ,

DEFENDANT’S MOTION TO VACATE HIS 1999 MURDER CONVICTION BASED UPON THE PROSECUTION’S FAILURE TO TURN OVER BRADY MATERIAL PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s motion to vacate his 1999 murder conviction based upon the prosecution’s failure to turn over Brady material regarding a prosecution witness (Corti) was properly granted:

The People are obligated to disclose exculpatory evidence in their possession which is favorable to the defendant and material to the issues of guilt or innocence … . Moreover, the duty of disclosing exculpatory material extends to disclosure of evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence … .

Here, the defendant was not provided with material regarding Cort’s participation as a witness in two unrelated homicide trials, along with prior agreements between Cort and law enforcement, including her use as a confidential informant by police and her placement in a witness relocation program following her participation in one of the unrelated homicide trials, during which her rent was paid by the Office of the Kings County District Attorney for approximately one year. This material contradicted Cort’s trial testimony that she did not have any “deals” with law enforcement and had not been in touch with the District Attorney’s Office “for a long period of time,” as well as the prosecutor’s arguments during summation that Cort “never took a deal” and “never asked for anything in return.” Significantly, Cort’s credibility was critical as she was the People’s only witness to testify that it was the defendant who shot the victim, and there was no other trial evidence directly linking the defendant to the crime … . Under these circumstances, in the context of the entire trial, Cort’s involvement with law enforcement “was both favorable and material to the defense, and the People’s failure to disclose this information to the defense violated defendant’s constitutional right to due process” … . In addition, the errors were compounded by the prosecution’s repetition and emphasis on the misinformation during summation … . People v Rodriguez, 2020 NY Slip Op 05234, Second Dept 9-30-20

 

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