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THE SEARCH WARRANT WHICH ALLOWED THE SEIZURE OF BUSINESS COMPUTERS, COMPUTER FILES AND BUSINESS DOCUMENTS WITH ONLY A DATE-RESTRICTION AMOUNTED TO A GENERAL WARRANT, THE SEIZED ITEMS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined the search warrant for business computers, computer files and documents amounted to a general warrant, and the items seized should have been suppressed. The warrant was procured by the Office of Attorney General (OAG) and targeted two realty companies which were alleged to have involvement in the illegal construction and demolition of a rent-stabilized building:

The search warrant … permitted the OAG to search and seize broad categories of items relating to 1578 Union Street Realty Corporation, Dream Home Realty, and a number of other businesses allegedly controlled by the defendant through which he had conducted real estate transactions. The items permitted to be searched and seized included: corporate documents; employment records, employee lists, and employment contracts; all calendar books, appointment books, and address books; all computers, computer hard drives, and computer files stored on other media; and all bank, tax and financial records. The warrant did not name or specify any particular crime or offense to which the search was related, and did not incorporate the affidavit by reference. * * *

… [O]ther than a date restriction covering a period of approximately five years, the warrant permitted the OAG to search and seize all computers, hard drives, and computer files stored on other devices, without any guidelines, parameters, or constraints on the type of items to be viewed and seized … . As has been observed by federal courts, where the property to be searched is computer files, “the particularity requirement assumes even greater importance” … since “[t]he potential for privacy violations occasioned by an unbridled exploratory search” of such files is “enormous” … .

Additionally, as to paper documents, the warrant merely identified generic classes of items, effectively permitting the OAG to search and seize virtually all conceivable documents that would be created in the course of operating a business … . People v Melamed, 2019 NY Slip Op 09295, Second Dept 12-24-19

 

PROOF OF A PROBATION VIOLATION SUBMITTED AFTER THE CLOSE OF EVIDENCE SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department determined County Court should not have held defendant violated the probation condition prohibiting him from committing a new  crime because the evidence of the new crime was not presented to the court until after the close of evidence:

… [T]he defendant correctly contends that the County Court erred in finding that he violated the condition of his probation prohibiting him from committing any additional crime, offense, or violation based solely on his arrest and indictment for attempted murder. While the court would have been permitted to take judicial notice of the defendant’s subsequent indictment for attempted murder … , that evidence was presented after the close of evidence at the revocation of probation hearing. The defendant had no opportunity to be heard regarding the indictment and related documents relied upon by the court. Accordingly, the court should not have found that the defendant violated the condition of his probation based upon the commission of a new crime … . People v Herring, 2019 NY Slip Op 09287, Second Dept 12-24-19

 

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SPANISH-LANGUAGE CONVICTION RECORDS FROM PUERTO RICO, WHICH WERE NOT TRANSLATED, WERE INSUFFICIENT TO PROVE DEFENDANT TO BE A SEX OFFENDER (FOURTH DEPT). ​

The Fourth Department, vacating the risk level determination, determined the proof defendant was a sex offender was insufficient. The documents relating to a conviction in Puerto Rico were in Spanish and were not translated:

We agree with defendant that, in making its determination that defendant is a sex offender, the Board erred in relying on documents in Spanish that were not accompanied by an English translation (see generally CPLR 2101 [b]). Upon defendant’s objection during the SORA hearing to the Board’s determination, no additional documents were submitted to support the Board’s determination. Thus, there is no English-translated document stating the offense of which defendant was convicted in Puerto Rico, and therefore there is no competent evidence to support the Board’s determination that defendant was convicted of a felony offense in another jurisdiction … . In addition, the purported sex offender registration form showing that defendant was required to register in Puerto Rico is entirely in Spanish, and thus there is no competent evidence to support the Board’s determination that defendant was required to register as a sex offender in Puerto Rico … . People v Ramos, 2019 NY Slip Op 09153, Fourth Dept 12-20-19

 

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IT IS REVERSIBLE ERROR FOR A JUDGE TO NEGOTIATE A PLEA DEAL WITH A CODEFENDANT IN EXCHANGE FOR TESTIMONY AGAINST THE DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the trial judge should not have negotiated a plea deal with a codefendant in exchange for testimony against the defendant:

… [T]he court committed reversible error when it “negotiated and entered into a [plea] agreement with a codefendant[,] requiring that individual to testify against defendant in exchange for a more favorable sentence” … . Here, “by assuming the function of an interested party and deviating from its own role as a neutral arbiter, the trial court denied defendant his due process right to [a] fair trial in a fair tribunal’ ” … . We therefore reverse the judgment and grant a new trial before a different justice on counts one and two of the indictment … . People v Lawhorn, 2019 NY Slip Op 09223, Fourth Dept 12-20-19

 

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FAILURE TO INFORM THE DEFENSE ABOUT A SECOND EYEWITNESS TO THE SHOOTING WAS A REVERSIBLE BRADY VIOLATION, THE MOTION TO VACATE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, reversing Supreme Court, over a dissent, granted defendant’s motion to vacate his conviction and ordered a new trial, based upon the People’s failure to notify the defense of a second eyewitness to the shooting (a Brady violation). The opinion is too detailed factually and too comprehensive legally to fully summarize here:

Several months after the trial concluded, the assistant district attorney who tried the case received an inter-office email attaching a report from a detective who had interviewed an eyewitness to the shooting. The ADA and another prosecutor had themselves interviewed the witness before the trial, having learned that a man who had been arrested for a drug sale near the Polo Grounds told a detective that he had seen the Philips shooting. The prosecutors spoke to the eyewitness in the detective’s presence, and no one took notes. Both prosecutors recalled only that the witness said he saw a man in brown clothes go down the 110 step-staircase, shoot Phillips, and go back up the steps. The ADA concluded that the statement was “cumulative” and did not disclose it to the defense. However, after receiving the email, he notified defendant’s trial counsel about the witness, and attached the report, which he stated he had not known had ever been created. * * *

Defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that it was obtained in violation of his state and federal constitutional rights, including his rights under Brady. Defendant noted that the prosecution failed to disclose that it had interviewed a second eyewitness two years before trial and failed to disclose the report. Defendant’s trial lawyer submitted an affirmation in which he explained how timely disclosure of the information would have affected his preparation of the defense, including a misidentification defense. His investigator also submitted an affidavit in which he stated that timely disclosure would have been valuable because the statement contained “several strong leads.” For example, he would have spoken to the eyewitness before his memory faded or he became uncooperative, and he would have located the other two people who were sitting with the eyewitness. In addition, the rumor that Phillips robbed Social Security recipients was another lead that would have caused the investigator to seek out people not otherwise on the defense “radar” for potential leads about Phillips or those who wanted to kill him. People v McGhee, 2019 NY Slip Op 09116, First Dept 12-19-19

 

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DEFENDANT WAS PROPERLY PURSUED AND DETAINED BASED UPON HIS DRINKING FROM A CONTAINER IN A PAPER BAG AND RUNNING INSIDE A NEARBY BUILDING; THE INTENT TO DEFRAUD WAS PROPERLY INFERRED FROM DEFENDANT’S POSSESSION OF BOTH REAL AND COUNTERFEIT BILLS, KEPT SEPARATELY ON HIS PERSON (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over an extensive two-judge dissent, determined defendant was properly pursued and detained after a police officer saw him on the street drinking from a container inside a paper bag and then saw him run inside a nearby building as the officer approached. The Court further determined the intent to defraud could be inferred from the defendant’s possession of counterfeit bills. The defendant had both counterfeit and real money on his person, kept separately. The issues were succinctly described in the dissent:

From the dissent:

The majority lauds the hot pursuit and forcible detention of Clinton Britt, a man drinking a Lime-A-Rita&TLRtrade; wrapped in a brown paper bag in Times Square shortly before midnight, and his subsequent conviction for intending to spend counterfeit money absent any indication that he attempted or planned to use it, simply because it was found rubber-banded separately from his real money when he was searched upon arrest. Both are mistakes.

The first — let’s chase and physically detain people drinking from unseen containers in brown paper bags — is perhaps understandable because of the tremendous difficulty inherent in the mis-application of our De Bour test in many real-world situations. The sad consequence of that mistake is a regression from the legislative and prosecutorial progress eschewing policing based on stereotypes, returning us to the world of broken windows — where police pursue quality of life violations that disproportionately affect the poor (not merely those committing the infractions, but their families, neighbors and communities).

The second — let’s equate the separation of real from counterfeit money with the intent to defraud — is inexplicable. It overturns our clear holding in People v Bailey (13 NY3d 67 [2009]), by contravening the most fundamental proposition of evidence: a fact is not evidence unless it makes the disputed issue more likely to be true than it otherwise would be. Put simply, if you knew you had counterfeit money on your person and did not want to use it, you would keep it separate from your real money. That [defendant] kept his real and fake money separate says nothing about his intent to use it to defraud, deceive or injure anyone, which is a statutory requirement under Penal Law § 170.30. People v Britt, 2019 NY Slip Op 09060, CtApp 12-19-19

 

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THE SUPPRESSION COURT DID NOT ABUSE ITS DISCRETION BY REOPENING THE SUPPRESSION HEARING AFTER THE PEOPLE HAD RESTED TO ALLOW THE PEOPLE TO PRESENT AN ADDITIONAL WITNESS; THE “ONE FULL OPPORTUNITY” DOCTRINE DOES NOT APPLY IN THE “PRE-RULING” STAGE OF A SUPPRESSION HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissenting opinion, held the suppression court did not abuse its discretion by allowing the People to reopen the suppression hearing to present another witness after the People had rested. The court subsequently denied the motion to suppress. The Court of Appeals framed the issue around the “one full opportunity” rule which precludes reopening a hearing in other contexts and decided not to extend the rule to the “”pre-ruling” stage of a suppression hearing:

In Havelka [45 NY2d 636], we applied the “one full opportunity” rule to a holding by an appellate court overturning the decision of the suppression court. In Kevin W [22 NY3d 287}. we applied the same rule to the suppression court’s decision to reopen the hearing after its ruling on the merits of the motion. Defendant now asks us to apply the rule at a point still earlier in the process, similarly restricting the suppression court’s discretion before any decision is made. This we decline to do.

A basic concern underlying both Havelka and Kevin W. is finality, described as the “haunt[ing] . . . specter of renewed proceedings” after the defendant initially has prevailed … . We explained in Havelka that allowing the People to present additional evidence at a new hearing would render success at the original suppression hearing “nearly meaningless” … . The People, we said, should not get “a second chance to succeed where once they tried and failed” … . However, that concern is absent where no decision on the motion has been rendered by the hearing court: no victory will be rendered “nearly meaningless.”

The second issue of concern weighing in favor of the “one full opportunity” rule — the risk of improperly tailored testimony at the reopened proceedings — is significantly lower where the People do not have a formal decision from either an appellate court or the hearing court. People v Cook, 2019 NY Slip Op 09059, CtApp 12-19-19

 

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DEFENDANT, A NONCITIZEN, WAS TOLD DURING HIS PLEA COLLOQUY THAT HE DID NOT HAVE THE RIGHT TO A JURY TRIAL ON THE DEPORTATION-ELIGIBLE B MISDEMEANOR; WHILE THE LEAVE APPLICATION WAS PENDING THE LAW WAS CHANGED TO AFFORD A PERSON IN DEFENDANT’S POSITION THE RIGHT TO A JURY TRIAL; THE MAJORITY UPHELD THE GUILTY PLEA; THE DISSENT ARGUED THE PLEA SHOULD NOT STAND (CT APP).

The Court of Appeals, in a brief memorandum, over an extensive dissenting opinion, determined the accusatory instrument accusing defendant of criminal contempt was sufficient and defendant’s guilty plea was voluntary. During the plea colloquy defendant, an noncitizen, was told he did not have the right to a jury trial on the deportation-eligible B misdemeanor. While defendant’s leave application to the Court of Appeals was pending, the court decided People v Suazo, 32 NY3d 491, affording persons in defendant’s position the right to a jury trial. The dissent argued the guilty plea should be vacated:

From the dissent:

In accordance with the law at the time of defendant Sixtus Udeke’s plea allocution, the trial court told defendant, a noncitizen, that he had no right to a trial by jury for a deportation-eligible Class B misdemeanor. While defendant’s leave application to this Court was pending, we issued a new rule in People v Suazo (32 NY3d 491 [2018]), recognizing precisely the right defendant was told he did not have during the plea colloquy: that noncitizens like defendant have the right to a trial by jury for crimes carrying the potential penalty of deportation. That rule applies retroactively to defendant’s appeal, and it leads to the conclusion that his guilty plea is invalid because he could not have knowingly and intelligently waived a right the court said he did not have. Therefore, I dissent from the majority decision that the guilty plea should stand. People v Udeke, 2019 NY Slip Op 09057, CtApp 12-19-19

 

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AN APPLICATION FOR A WRIT OF HABEAS CORPUS IS NOT A VEHICLE FOR ISSUES WHICH COULD HAVE BEEN RAISED IN A DIRECT APPEAL OR A MOTION TO VACATE THE JUDGMENT OF CONVICTION PURSUANT TO CPL 44O (THIRD DEPT).

The Third Department determined petitioner’s application for a writ of habeas corpus was properly denied because the issues could have been raised in a direct appeal or in a CPL 440 motion to vacate the conviction:

With regard to petitioner’s claim that, pursuant to Penal Law § 70.35, his one-year jail sentences merged with and should have been ordered to run concurrently with his indeterminate sentence, “[h]abeas corpus is not the appropriate remedy for raising claims that could have been raised on direct appeal or in the context of a CPL article 440 motion, even if they are jurisdictional in nature” … . Petitioner’s contentions regarding his sentences, including their legality and whether they merged under Penal Law § 70.35, could have been raised on direct appeal or in a motion pursuant to CPL 440.20 … . As we perceive no basis to depart from traditional orderly procedure, we conclude that Supreme Court properly denied petitioner’s application. People ex rel. McCray v Favro, 2019 NY Slip Op 09065, Third Dept 12-19-19

 

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DEFENDANT’S CONVICTION OF ATTEMPTED ENDANGERING THE WELFARE OF A CHILD DID NOT MEET THE CRITERIA FOR THE ASSESSMENT OF 30 POINTS UNDER RISK FACTOR 9; DEFENDANT WAS THEREFORE A PRESUMPTIVE LEVEL ONE; HAD THE PEOPLE KNOWN DEFENDANT WAS PRESUMPTIVE LEVEL ONE THEY WOULD HAVE SOUGHT AN UPWARD DEPARTURE; MATTER REMITTED FOR A NEW DETERMINATION (SECOND DEPT).

The Second Department determined defendant’s conviction of attempted endangering the welfare of a child did not meet the criteria for assessing 30 points under risk factor 9, and therefore defendant should have been assessed at a presumptive level one. The People argued that had the defendant been assessed at a presumptive level one they would have sought an upward department based on aggravating factors. The matter was remitted for a new determination:

Risk factor 9 requires the assessment of 30 points where “[t]he offender has a prior criminal history that includes a conviction or adjudication for the class A felonies of Murder, Kidnaping or Arson, a violent felony, a misdemeanor sex crime, or endangering the welfare of a child, or any adjudication for a sex offense” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [hereinafter Guidelines], risk factor 9 [2006]). Here, as the defendant contends, the Supreme Court should not have assessed 30 points under risk factor 9 based on his prior conviction for attempted endangering the welfare of a child inasmuch as that conviction was neither for a felony, nor for a “sex offense” (Correction Law § 168-a[2]), “nor a conviction for actually endangering the welfare of a child” … . Accordingly, only 5 points could be assigned under risk factor 9 for “[p]rior history/no sex crimes or felonies,” resulting in a total score of less than 70 points, a presumptive risk level one … . People v Lewis, 2019 NY Slip Op 09045, Second Dept 12-18-19

 

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