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AFTER REVERSAL BY THE COURT OF APPEALS, DEFENDANT’S SUPPRESSION MOTION WAS GRANTED AND HIS GUILTY PLEA WAS VACATED; EVEN THOUGH DEFENDANT’S SUPPRESSION MOTION DID NOT RELATE TO THE OFFENSE TO WHICH DEFENDANT PLED GUILTY, THE APPELLATE DIVISION SHOULD HAVE REACHED THE MERITS OF THE MOTION BECAUSE OF ITS POTENTIAL EFFECT ON THE DECISION TO PLEAD GUILTY TO ANOTHER OFFENSE IN FULL SATISFACTION OF ALL THE CHARGES (FOURTH DEPT).

The Fourth Department, after a reversal by the Court of Appeals, determined defendant’s motion to suppress evidence seized after a street stop should have been granted and vacated defendant’s guilty plea. Defendant was charged with two burglaries on different days. Defendant pled guilty to one of the burglaries in satisfaction of both. Defendant appealed the denial of the suppression motion related to the street stop. The Fourth Department did not reach the merits of the appeal because the suppression motion did not involve the offense to which defendant pled guilty. The Court of Appeals reversed, finding that the denial of the suppression motion was appealable because of its potential effect on the decision to plead guilty in satisfaction of both charges:

A majority of this Court concluded that ” the judgment of conviction on appeal here did not ensue from the denial of the motion to suppress [relating solely to count two] and the latter [wa]s, therefore, not reviewable’ pursuant to CPL 710.70 (2)” … . The Court of Appeals reversed, stating that “the Appellate Division may review an order denying a motion to suppress evidence where, as here, the contested evidence pertained to a count—contained in the same accusatory instrument as the count defendant pleaded guilty to—that was satisfied by the plea” … . The Court of Appeals remitted the matter to this Court to rule on defendant’s suppression contention.

Upon remittitur, we now agree with defendant that Supreme Court erred in refusing to suppress physical evidence seized as a result of his unlawful detention on October 3, 2014 … . We further agree with defendant that such error was not harmless under the circumstances (see id. at 1424). We therefore reverse the judgment, vacate the plea, grant that part of the omnibus motion seeking to suppress the physical evidence seized from defendant on October 3, 2014, and remit the matter to Supreme Court, Monroe County, for further proceedings on the indictment. People v Holz, 2020 NY Slip Op 03345, Fourth Dept 6-12-20

 

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FEDERAL CUSTOMS AND BORDER PATROL MARINE INTERDICTION AGENT IS NOT A PEACE OFFICER UNDER NEW YORK LAW; THEREFORE THE AGENT MADE A VALID CITIZEN’S ARREST OF AN ERRATIC DRIVER HE OBSERVED WHILE ON THE HIGHWAY; MOTION TO SUPPRESS THE WEAPON FOUND IN DEFENDANT’S CAR SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, over a dissent, determined the federal marine interdiction agent with US Customs and Border Protection (CBP) was not a peace officer under New York law and, therefore, could effect a citizen’s arrest. The federal agent observed defendant driving erratically and putting other drivers in danger so he activated his emergency lights and pulled the driver over. The agent stayed in his vehicle and called the Buffalo police. After the Buffalo police arrived, the agent left. The police found a weapon in defendant’s car and he was charged with criminal possession of a weapon. Supreme Court granted defendant’s motion to suppress and the Fourth Department affirmed. Both courts relied on People v Williams (4 NY3d 535 [2005]) which held that peace officers could not make a citizen’s arrest. The Court of Appeals reasoned that Williams did not control because the federal agent in this case was not a peace officer under the relevant New York statutory definitions and therefore could make a citizen’s arrest:

Because the agent who stopped defendant in this case is not considered a federal law enforcement officer with peace officer powers pursuant to CPL 2.10 and 2.15, he could not have improperly circumvented the jurisdictional limitations on the powers reserved for those members of law enforcement under CPL 140.25, as the peace officers in Williams did. In other words, the agent’s conduct here did not violate the Legislature’s prescribed limits on a peace officer’s arrest powers because he is not, in fact, a peace officer. …

… [A]side from the clear limits as to the justifiable use of physical force that may be applied during an arrest by a private citizen (CPL 35.30 [4]; CPL 140.35 [3]), as well as the requirement that “[s]uch person must inform the person whom he [or she] is arresting of the reason for such arrest unless he [or she] encounters physical resistance, flight or other factors rendering such procedure impractical” (CPL 140.35 [2]), nothing in the citizen’s arrest statutes themselves set forth the methods that must be employed when, as here, a crime is committed in the responding citizen’s presence (see CPL 140.30, 140.40 …). We reiterate that whether this stop comported with constitutional principles or the express terms of the arrest statutes is simply not before us, as defendant failed to raise any such arguments before the suppression court. People v Page, 2020 NY Slip Op 03265, CtApp 6-11-20

 

COURT’S ERRORS IN DEALING WITH NOTES FROM THE JURY, INCLUDING SUBSTITUTING THE WORD ‘INITIALLY’ FOR ‘INTENTIONALLY,’ REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court’s handling of jury notes constituted reversible error:

… [I]n a note marked as court exhibit 8, the jury posited a question about the elements of resisting arrest. When reading that note into the record, the Supreme Court substituted the word “initially” in place of the word “intentionally,” forming a substantively different question than that posed by the jury. The court again substituted the word “initially” in place of the word “intentionally” when it read the note aloud later in the proceedings. Since there is no indication in the record that court exhibit 8 was shown to the parties, the court’s erroneous use of a substantively different word than that used by the jury when it read the note into the record, and its repetition of that same error later in the proceedings, constituted mode of proceedings errors. In addition, although the jury submitted to the court a note marked as court exhibit 10 to clarify which portions of the testimony of certain witnesses the jury wished to have read back, the court did not read court exhibit 10 into the record at any point, and the record does not show that the court ever informed the parties that this note had been received. As a result of the errors regarding these jury notes, we must reverse the defendant’s conviction of resisting arrest … . People v Petrizzo, 2020 NY Slip Op 03251, Second Dept 6-10-20

 

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EVEN THOUGH THE US SUPREME COURT CASE REQUIRING WARRANTS FOR CELL SITE LOCATION DATA WAS NOT DECIDED AT THE TIME OF TRIAL, PRESERVATION OF THAT ISSUE FOR APPEAL IS STILL NECESSARY; A DEFENDANT MAY BE INDICTED FOR BOTH DEPRAVED INDIFFERENCE AND INTENTIONAL MURDER; CONSECUTIVE SENTENCES FOR THE SHOOTINGS AND POSSESSION OF A WEAPON WERE APPROPRIATE (FIRST DEPT). ​

The First Department, affirming defendant’s murder, assault and weapon-possession convictions, and affirming the denial of defendant’s motion to vacate the convictions, determined: (1) the issue re: the warrantless procurement of cell site location data was not preserved, and preservation was necessary despite the fact that the US Supreme Court case requiring warrants was not decided at the time of trial; (2) the defendant was properly indicted, by different grand juries, for both depraved indifference and intentional murder; and (3) consecutive sentences for possession of a weapon and the shootings were appropriate:

At trial, defendant did not preserve any claim relating to cell site location information obtained without a warrant, and the motion court providently exercised its discretion under CPL 440.10(2)(b) when it rejected defendant’s attempt to raise this issue by way of a postconviction motion. Defendant asserts that it would have been futile for trial counsel to raise the issue because the Supreme Court of the United States had not yet decided Carpenter v United States (585 US __, 138 S Ct 2206 [2018]), a case that we assume, without deciding, applies here because defendant’s direct appeal was pending at the time that case was decided. We conclude that defendant should not be permitted to avoid the consequences of the lack of preservation. Although Carpenter had not yet been decided, and trial counsel may have reasonably declined to challenge the cell site information, defendant had the same opportunity to advocate for a change in the law as did the litigant who ultimately succeeded in doing so … . In the closely related context of preservation, the Court of Appeals has expressly rejected the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come” … . * * *

A grand jury’s indictment of defendant for depraved indifference murder, after a prior grand jury had indicted him for intentional murder, did not violate CPL 170.95(3). The second presentation did not require permission from the court, because the first indictment cannot be deemed a dismissal of the depraved indifference count in the absence of any indication that the first grand jury was aware of or considered that charge … . The rule that a person may not be convicted of both intentional and depraved indifference murder … applies to verdicts after trial, not indictments. These charges may be presented to a trial jury in the alternative (as occurred in this case, where defendant was acquitted of depraved murder but nevertheless claims a spillover effect). Furthermore, the People were not required to present both charges to the same grand jury … . People v Crum, 2020 NY Slip Op 03282, First Dept 6-11-20

 

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THE DEPRAVED-INDIFFERENCE ELEMENT OF THE CHARGED OFFENSES WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; ALTHOUGH DEFENDANT’S ATTEMPTS TO CARE FOR BURNS ON THE CHILD’S LEGS WERE GROSSLY INADEQUATE, THOSE MEASURES DID NOT SUPPORT A FINDING DEFENDANT DID NOT CARE AT ALL ABOUT THE CONDITION OF THE CHILD (SECOND DEPT).

The Second Department, reducing defendant’s assault and reckless endangerment convictions, over a dissent, determined the depraved-indifference element of the charges was not supported by the weight of the evidence. The defendant’s 20-month-old foster child had second and third degree burns on his legs. Mother consistently explained she heard screaming coming from the bathroom where she saw the child trying to get out of the tub and the child’s three-year-old sister standing outside the tub as the tub was filling up with hot water. The People tried to prove, through an expert (Yurt), that the child had been held in hot water. But there were inconsistencies in the expert’s testimony. Defendant explained that she was afraid to take the child to the hospital and instead tried to treat the burns after talking to a pharmacist and going on line:

The inconsistencies in Yurt’s [the People’s expert’s] testimony undermined the People’s already tenuous theory that the defendant affirmatively caused the burns. …

Accordingly, to establish the “depraved indifference” element of the subject offenses, we are left with the defendant’s failure to obtain proper medical care for the child. This case is thus squarely controlled by Lewie and Matos. As in those cases, while the evidence in this case shows that the defendant “cared much too little about [the] child’s safety, it cannot support a finding that she did not care at all” (People v Lewie, 17 NY3d at 359; see People v Matos, 19 NY3d at 476). Like the defendant in Matos, the defendant in the present case took measures, “albeit woefully inadequate” ones, to care for the child, by inquiring about proper burn care at a pharmacy, purchasing ointments and bandages, and keeping the burns covered. Those measures are commensurate with the measures taken by the defendant in Matos who reacted to a beating that caused her child severe internal bleeding and multiple broken bones by making a homemade splint for her son’s leg and giving him ibuprofen (see id. at 476). People v Verneus, 2020 NY Slip Op 03256, Second Dept 6-10-2o

 

DEFENDANT’S MOTION TO DISMISS IN THE INTEREST OF JUSTICE SHOULD NOT HAVE BEEN GRANTED; THE MOTION, BROUGHT AFTER CONVICTION BY A JURY, WAS UNTIMELY AND NOT WARRANTED ON THE MERITS (SECOND DEPT).

The Second Department, in an appeal by the People, determined defendant’s motion to dismiss the criminal mischief count in the interest of justice, after conviction by a jury, should not have been granted. The motion was untimely and not warranted on the merits:

The People argue on appeal, as they did in opposition to the defendant’s motion, that the motion was untimely and therefore should have been denied on that basis. We agree. Under the circumstances, the Supreme Court should have denied the branch of the defendant’s motion which was pursuant to CPL 210.40(1), as he failed to show good cause for seeking that relief more than 45 days after his arraignment … .

In any event, we are not persuaded that the interest of justice was served by the dismissal of the criminal mischief in the third degree count of the indictment in this case. “The power to dismiss an indictment in furtherance of justice is to be exercised sparingly, in those cases where there is some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment . . . would constitute or result in injustice'” … . In this case, the Supreme Court improvidently exercised its discretion in substituting its own judgment concerning the credibility of the trial witnesses and the culpability of the defendant for that of the jury … . Additionally, “[t]here is nothing in the record before us that marks the prosecution of this defendant as extraordinary or one which cries out for justice beyond the confines of conventional considerations” … . Accordingly, we reinstate the count of criminal mischief in the third degree, and remit the matter for sentencing. People v Pfail, 2020 NY Slip Op 03252, Second Dept 6-10-20

 

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SUPREME COURT MISCHARACTERIZED THE SCOPE OF THE WAIVER OF APPEAL BY NOT CLARIFYING THAT CERTAIN FUNDAMENTAL ISSUES REMAIN APPEALABLE DESPITE THE WAIVER; WAIVER INVALID (SECOND DEPT).

The Second Department determined Supreme Court mischaracterized the scope of the waiver of appeal rendering the waiver invalid:

… [T]he court mischaracterized the effect of the waiver on the defendant’s right to appeal. In this regard, the court, after describing the function of an appellate court, concluded its explanation of the waiver by stating: “What all this means, though, is that this plea and the sentence I am going to impose are final and that higher court will not have a chance to review it.”

“The improper description of the scope of the appellate rights relinquished by the waiver is refuted by . . . precedent, whereby a defendant retains the right to appellate review of very selective fundamental issues, including the voluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of the court” … . Accordingly, it was incorrect for the Supreme Court to convey to the defendant that an appellate court would have no authority to review the plea or the sentence under any circumstances.

Furthermore, the record in this case does not include any “clarifying language” indicating that “appellate review remained available for certain issues” or that “the right to take an appeal was retained” … . Although the People cite to a written waiver that was apparently signed by the defendant, the Supreme Court “failed to confirm that [the defendant] understood the contents of the written waiver[ ]” … . In any event, the written waiver does not indicate that appellate review remained for certain limited issues, but rather, merely stated that “[the] sentence and conviction will be final” … . People v Christopher B., 2020 NY Slip Op 03242, Second Dept 6-10-20

 

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FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF DNA EVIDENCE DERIVED USING THE FORENSIC STATISTICAL TOOL (FST); NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined either the DNA evidence should have been precluded, or a Frye hearing should have been held for DNA evidence derived using the Forensic Statistical Tool (FST):

Prior to trial, the defendant moved to preclude evidence sought to be introduced by the People regarding DNA testing derived from the use of the Forensic Statistical Tool (hereinafter FST), or alternatively, to conduct a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) to determine the admissibility of such evidence. The Supreme Court denied the defendant’s motion, finding that FST was generally accepted in the scientific community.

Based upon the recent determinations by the Court of Appeals in People v Foster-Bey (_____ NY3d _____, 2020 NY Slip Op 02124) and People v Williams (_____ NY3d _____, 2020 NY Slip Op 02123), we find that it was an abuse of discretion as a matter of law for the Supreme Court to admit the FST evidence without first holding a Frye hearing “given [the] defendant’s showing that there was uncertainty regarding whether such proof was generally accepted in the relevant scientific community at the time of [the defendant’s] motion” … . Additionally, we find that the error was not harmless … . Without this forensic evidence, proof of the defendant’s guilt was not overwhelming as the only additional evidence linking the defendant to the weapon was the testimony of a lay witness which was circumstantial in nature. People v Pelt, 2020 NY Slip Op 03250, Second Dept 6-10-20

 

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FLAWED LINEUP IDENTIFICATION WAS NOT CORROBORATED BY OTHER EVIDENCE; CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the lineup identification by the victim was flawed. The conviction was deemed against the weight of the evidence because the flawed identification was not corroborated by other evidence:

The evidence presented at trial established that the complainant described the perpetrator to the police as balding with no facial hair. The participants in the lineup five days later wore hats to conceal their hairlines. However, the defendant’s significant facial hair was visible. Further, the defendant was the only participant in the lineup who was wearing a yellow shirt. Although the shirts of the participants in the lineup were covered with a cloth, the defendant’s shoulders remained visible. The perpetrator had also worn a yellow shirt. After viewing the lineup, the complainant told the investigating officer that she recognized the defendant’s yellow shirt as the shirt worn by the perpetrator, indicating that the most significant similarity between the perpetrator and the defendant visible to her was his yellow shirt.

Since the complainant’s identification of the defendant as the perpetrator was not corroborated by any other evidence, we conclude, based upon our review of the facts, that there is a reasonable doubt as to whether the defendant committed this crime. People v Mann, 2020 NY Slip Op 03249, Second Dept 6-10-20

 

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WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK AFTER HE WAS HANDCUFFED NOT JUSTIFIED; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the warrantless search of defendant’s backpack was not justified. The appeal was heard because the waiver of appeal was deemed invalid:

Officer Musa approached the defendant, who, in response to Officer Musa’s inquiry, provided his name. The defendant was carrying a backpack, and Officer Musa observed what appeared to be credit cards or identification cards in an outside mesh pocket. Officer Musa arrested the defendant for criminal trespass, handcuffed him, and removed the backpack from the defendant. Officer Musa then searched the backpack at the scene of the arrest … . * * *

” All warrantless searches presumptively are unreasonable per se,’ and, thus, [w]here a warrant has not been obtained, it is the People who have the burden of overcoming’ this presumption of unreasonableness” …. ” [E]ven a bag within the immediate control or grabbable area’ of a suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag'” … . People v Chy, 2020 NY Slip Op 03244, Second Dept 6-10-20

 

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