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THE POLICE OFFICER DID NOT HAVE A FOUNDED SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED THE DEFENDANT POINTED QUESTIONS IN THIS STREET STOP SCENARIO; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the police officer did not have a founded suspicion of criminal activity at the time defendant was asked about the contents of a bag he was carrying. The defendant answered “weed,” was frisked, and a firearm was seized. The evidence should have been suppressed:

The evidence at the suppression hearing establishes that the arresting officer was on routine patrol in what he described as a high-crime area known to be an “open air drug market,” where there had also been numerous burglaries and robberies. That officer had been a member of the police force for only a few months, and he was under the supervision of a training officer. The arresting officer testified that he observed defendant walking on a sidewalk shortly after midnight on a chilly night, with temperatures near 40 degrees, and that defendant was wearing a mask that covered the lower part of his face. The officer had not received any reports of recent crimes in the area, was not responding to any call, and did not observe defendant engage in any illegal activity. The officer pulled his patrol vehicle in front of defendant’s path of travel, exited the patrol vehicle along with the training officer, approached defendant, and asked defendant why he was wearing a mask. Defendant replied that he was walking his dog, and the unchallenged evidence at the hearing establishes that he was indeed walking a dog. * * *

Based on the evidence at the suppression hearing, the People failed to meet their burden of establishing that the training officer had the requisite founded suspicion … . Thus, we conclude that the training officer’s inquiry and the subsequent frisk of defendant by the arresting officer was not a proper escalation of the level one encounter. …

We further conclude that the frisk of defendant and seizure of the gun was not justified “as having been in the interests of the officer[‘s] safety, since there was no testimony that the [arresting] officer[ ] believed defendant to be carrying a weapon . . . , and the People presented no other evidence establishing that the [arresting] officer had reason to fear for his safety” … . People v Wallace, 2020 NY Slip Op 01796, Fourth Dept 3-13-20

 

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DEFENDANT WAS ENTITLED TO SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT; COUNTY COURT SHOULD NOT HAVE ORDERED RESTITUTION WHICH WAS NOT ADDRESSED IN THE AGREEMENT (FOURTH DEPT).

The Fourth Department, amending defendant’s sentence, determined restitution should not have been ordered because it was not addressed in the plea agreement:

Restitution was not part of the plea bargain, and thus the amended sentence exceeded the sentence promised in the plea bargain … . Defendant objected to County Court imposing restitution … , but the court rejected defendant’s request for specific performance of the plea agreement and instead offered defendant the opportunity to withdraw his plea, which defendant declined. As defendant contends and the People correctly concede, defendant was entitled to specific performance of the plea agreement because he “placed himself in a no-return’ position by carrying out his obligations under” the agreement here, and there was “no significant additional information bearing upon the appropriateness of the plea bargain” … . People v Rosa, 2020 NY Slip Op 01793, Fourth Dept 3-13-20

 

PENNSYLVANIA CRIME IS NOT THE EQUIVALENT OF A NEW YORK FELONY; DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (FOURTH DEPT).

The Fourth Department, vacating the sentence, determined the Pennsylvania crime of receiving stolen property (a firearm) was not the equivalent of a New York felony. Therefore defendant should not have been sentenced as a second felony offender:

We agree with defendant and the People correctly concede that defendant was improperly sentenced as a second felony offender inasmuch as the predicate conviction, i.e., the Pennsylvania crime of receiving stolen property (a firearm) (18 Pa Cons Stat §§ 3903 [a] [3]; 3925) is not the equivalent of the New York felony of criminal possession of stolen property in the fourth degree … . Upon our review of Pennsylvania statutory and case law, the operability of a firearm is not an element of the Pennsylvania offense, whereas it is a required element of the New York offense … . People v Huntress, 2020 NY Slip Op 01778, Fourth Dept 3-13-20

 

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DEFENDANT WAS THREATENED WITH A HARSHER SENTENCE SHOULD SHE DECIDE TO GO TO TRIAL; PLEA VACATED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined defendant was improperly threatened with a heavier sentence should she decide to go to trial:

At an appearance prior to the plea proceeding, the court stated that, if defendant decided to reject the plea offer and was convicted after trial, it intended to impose the maximum sentence on the top count and consecutive time on an unnamed additional count. At that same appearance, the court said that defendant and her codefendants, who were her sister and brother-in-law, would also be federally prosecuted and that “the evidence is overwhelming here.” It is well settled that “[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if he [or she] decides to proceed to trial” … . Here, we agree with defendant that “the court’s statements do not amount to a description of the range of the potential sentences but, rather, they constitute impermissible coercion, rendering the plea involuntary and requiring its vacatur’ ” … . People v Shields, 2020 NY Slip Op 01767, Fourth Dept 3-13-20

 

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ALTHOUGH COUNTY COURT DID NOT ABUSE ITS DISCRETION, THE APPELLATE COURT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION TO ADJUDICATE DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT).

The Fourth Department, exercising its own interest of justice authority, determined defendant should be adjudicated a youthful offender, noting that County Court did not abuse its discretion:

… [D]efendant was 17 years old at the time of the crimes and had no prior criminal record, history of violence, or history of sex offending. Moreover, defendant has substantial cognitive limitations, learning disabilities, and other mental health issues, and he has accepted responsibility for his actions and expressed genuine remorse. Both the Probation Department and the reviewing psychologist recommended youthful offender treatment, and the record suggests that defendant might have the capacity for a productive and law-abiding future. The only factor weighing against affording defendant youthful offender treatment is the seriousness of the crimes.

On balance, although County Court did not abuse its discretion in denying defendant youthful offender status, we will exercise our discretion in the interest of justice to reverse the judgment, vacate the conviction, and adjudicate defendant a youthful offender … . People v Nicholas G., 2020 NY Slip Op 01828, Fourth Dept 3-13-20

 

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DEFENDANT’S RIGHT TO COUNSEL ATTACHED AT THE PENNSYLVANIA ARRAIGNMENT; SUBSEQUENT QUESTIONING BY PENNSYLVANIA POLICE IN THE ABSENCE OF COUNSEL VIOLATED DEFENDANT’S RIGHT TO COUNSEL; NEW YORK POLICE DID NOT MAKE A REASONABLE INQUIRY INTO DEFENDANT’S REPRESENTATIONAL STATUS (FOURTH DEPT). ​

The Fourth Department, affirming the suppression of statements made by defendant, determined defendant had requested counsel at his arraignment in Pennsylvania and therefore subsequent questioning by Pennsylvania police about New York (Jamestown) offenses in the absence of counsel violated his right to counsel:

On March 28, 2017, defendant participated in a preliminary arraignment in Pennsylvania … , and the record supports the finding of County Court that defendant requested counsel during that proceeding. On April 4, 2017, members of the Jamestown Police Department traveled to Pennsylvania to interview defendant about the Jamestown arsons. Although the Jamestown police officers ultimately did not interview defendant themselves, they observed while Pennsylvania State Troopers interrogated defendant, in the absence of defense counsel, about the offenses allegedly committed in Pennsylvania. During that interrogation, the Pennsylvania State Troopers also questioned defendant about the New York offenses, and defendant made inculpatory statements about the Jamestown fires. * * *

…[E]even though the interview was carried out by Pennsylvania State Troopers, their interrogation is nevertheless subject to this state’s right to counsel jurisprudence inasmuch as they were agents of the Jamestown police officers … . ,,,

The Court of Appeals has held that “an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant’s representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge” … . Here, although the [Jamestown] captain asked whether defendant was represented by counsel, based on this record, we conclude that the captain’s inquiry was not reasonable inasmuch as he failed to ask whether defendant had requested counsel. People v Young, 2020 NY Slip Op 01825, Fourth Dept 3-13-20

 

REVERSAL IS NOT REQUIRED WHEN A JURY NOTE WHICH WAS NOT ADDRESSED BY THE COURT HAD NO DIRECT RELEVANCE TO THE CHARGED OFFENSE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined, after a reconstruction hearing, the trial judge was not made aware of a jury note which requested a trial exhibit and a chronology of events relating to the defendant’s dating the victim’s relative. The judge’s clerk provided the trial exhibit to the jury. No such chronology existed and the judge was not informed of the request for it. Because the chronology did not have anything to do with the charged offense, the failure to address that aspect of the jury note was not a mode of proceedings error:

… [T]he chronology requested by the jury involved background factual information regarding a former relationship between defendant and a relative of the victim that had no relevance to any of the elements of the charged crime or to the jury’s process of reaching a verdict … . … [I]n Silva, the Court of Appeals found that a trial court’s O’Rama [78 NY2d 270] error did not require reversal of the defendant’s drug-related convictions because the jury inquiry did not pertain to those convictions, but only to a conviction for weapon possession (People v Silva, 24 NY3d at 301 n 2). Likewise, in People v Walston (23 NY3d 986, 990 [2014]), the defendant’s manslaughter conviction was reversed because of a trial court’s mode of proceedings error, but the Court of Appeals held that reversal of a separate conviction on another charge was not required because the note did not address that offense.

Thus, reversal of a conviction is not required when a trial court fails to address a jury inquiry that has no direct relevance to that conviction … . People v Johnson, 2020 NY Slip Op 01668, Third Dept 3-12-20

 

FAILURE TO INCLUDE THE APPROXIMATE TIME OF THE COMMISSION OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) IS NOT A JURISDICTIONAL DEFECT (THIRD DEPT). ​

The Third Department determined that the Superior Court Information (SCI) was not jurisdictionally defective and therefore any attack on the validity of the SCI was precluded by the waiver of appeal:

Pursuant to our recent decisions in People v Elric YY. (179 AD3d 1304 [2020]) and People v Shindler (179 AD3d 1306 [2020]), defendant’s further contention that her 2015 waiver of indictment was jurisdictionally defective because the SCI did not set forth the approximate time of the commission of the charged crimes as required by CPL 195.20 is also without merit … . The omission of the approximate time of the charged crimes in the SCI, to which defendant did not object, is a nonjurisdictional defect to which any objection was forfeited by her guilty plea. Notably, no claim has been made that defendant lacked notice of the specific crimes for which she agreed to waive prosecution by indictment. People v Edwards, 2020 NY Slip Op 01671, Third Dept 3-12-20

 

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DEFENDANT WAS ALONE IN HIS CAR ARGUING WITH SOMEONE ON HIS PHONE WHEN THE POLICE APPROACHED; THE POLICE DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON FOR THE APPROACH; THE HANDGUN FOUND IN AN INVENTORY SEARCH SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court and dismissing the indictment, determined the police officers did not have an objective credible reason for approaching defendant, who was in his car outside a nightclub just after the club closed. The defendant was arrested after a check on his license revealed it had been suspended. The handgun found in an inventory search of the car should have been suppressed:

… [D]efendant’s engagement in an argument on his cell phone while alone in his private vehicle — did not provide any apparent nexus to the drug and weapons crimes that police said were typically committed in the area, or give rise to any other objective reason to question his presence. Nothing about a driver’s conduct in arguing on a cell phone, without more, suggests criminal activity related to weapons or drugs … . A sole occupant of a private vehicle arguing with someone who is not present gives rise to no apparent reason for police to intervene, such as potential safety concerns … .

Thus, we find that police did not have the requisite objective, credible reason for approaching defendant’s vehicle in the first instance. The encounter was further invalid because police had no objective, credible reason to extend the initial conversation by running defendant’s driver’s license after he responded to their initial inquiry and provided the information they requested … . The officer gave no explanation for his decision to intrude further at that point, nor does the record reveal such an explanation. Nothing about the exchange with defendant gave rise to any reason to suspect that he was not telling the truth … . Defendant’s driver’s license did not appear to belong to someone else … or reveal anything unusual on its face … . Lacking an objective, credible reason that justified police in approaching defendant’s vehicle and making inquiries, the encounter was invalid at its inception … . People v Stover, 020 NY Slip Op 01676, Third Dept 3-12-20

 

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING; DEFENSE COUNSEL WAS NOT FAMILIAR WITH THE CASE OR THE DEFENDANT’S BACKGROUND (SECOND DEPT).

The Second Department, reversing the conviction, determined defendant did not receive effective assistance of counsel at sentencing. Counsel was not familiar with the case of the defendant’s background:

… [T]he defendant was deprived of the effective assistance of counsel at sentencing. A defendant is ” entitled to an opportunity to be represented by counsel sufficiently familiar with the case and the defendant’s background to make an effective presentation on the question of sentence'” … . Here, the defendant’s counsel at sentencing made no substantive arguments on the defendant’s behalf, and the record demonstrates that counsel had no meaningful knowledge of the case or of the defendant’s background. People v Jones, 2020 NY Slip Op 01640, Second Dept 3-11-20

 

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