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SEARCH WARRANT FOR DEFENDANT’S CELL PHONE WAS OVERLY BROAD; GUILTY PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined that the search warrant issued for defendant’s cell phone was  overly broad in that it authorized a search going back eight months before the conduct alleged in the warrant:

The search warrant for defendant’s phones was overbroad. The application alleged that, on September 1, 2016, defendant sent texts to a 13 year old making indecent proposals, and called her on the same day. The warrant authorized examination of defendant’s internet usage from January 1 to September 13, 2016, and also authorized, without a time limitation, examination of essentially all the other data on defendant’s phones. This failed to satisfy the particularity requirement of both the Fourth Amendment and Article 1, § 12 of New York’s Constitution … .

The pivotal question here is whether there was probable cause that evidence of the crimes specified in the warrant would be found in the broad areas specified. Notably, the warrant application alleged two discrete crimes and specified conduct that “began” on September 1, 2016, and, as far as the available information indicated, occurred entirely on that date. While it was of course possible that defendant’s phone contained evidence of the specified offenses that predated September 1, there were no specific allegations to that effect. …

The information available to the warrant-issuing court did not support a reasonable belief that evidence of the crimes specified in the warrant would be found in all of the “locations” within defendant’s cell phone to which the warrant authorized access — for example, in defendant’s browsing history six or seven months before September 1, 2016, or in his emails, the examination of which was authorized without any time restriction … . People v Thompson, 2019 NY Slip Op 08772, First Dept 12-5-19

 

COURTROOM SHOULD NOT HAVE BEEN CLOSED TO FAMILY MEMBERS DURING THE UNDERCOVER OFFICER’S TESTIMONY, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, ordering an new trial, determined the defendant’s family members should not have been excluded from the courtroom duing the undercover officer’s testimony:

The People concede that the trial court erred in excluding defendant’s family members from some parts of the trial … . Here, the People failed to show specifically that defendant’s family posed a threat to the undercover officer’s safety. The court’s error requires reversal of the conviction … .

The People acknowledge that a harmless error/lack of prejudice analysis does not apply to courtroom closure errors. Nevertheless, relying on nonbinding Second Circuit case law, they argue that reversal is not warranted because the exclusion of defendant’s family was so trivial as not to implicate defendant’s right to a public trial (see e.g. Smith v Hollins, 448 F3d 533 [2d Cir 2006]). We need not decide whether a triviality exception exists under State law, because even applying that standard, the closure here cannot be characterized as trivial. Defendant’s family was kept out of the courtroom during the entirety of the direct examination, and part of the cross-examination, of an undercover officer who was one of the People’s key witnesses. That undercover was one of the officers involved in the narcotics operation that formed the basis of the charge against defendant. He set up the meeting to purchase the drugs, gave the buy money to defendant’s accomplice, and received crack cocaine in return. Thus, the exclusion of defendant’s family members “from the crux of the [People’s] case” was not trivial … . People v Ruffin, 2019 NY Slip Op 08771, First Dept 12-5-19

 

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WITHOUT PROOF DEFENDANT USED, ATTEMPTED TO USE, OR THREATENED TO USE THE BOX CUTTER FOUND IN HIS POCKET, THERE WAS NO PROOF THE BOX CUTTER MET THE DEFINITION OF A DANGEROUS INSTRUMENT (FIRST DEPT)

The First Department, reversing defendant’s criminal possession of a weapon conviction, determined the proof that defendant simply possessed a box cutter was not enough:

While feeling around defendant’s waist, the officer felt a metal object in defendant’s shorts. Upon further search, the officer saw the butt end of a box cutter sticking out of the fly of defendant’s underwear. The razor of the box cutter was in its sheath and not exposed. He later tested the box cutter to see if it was sharp, and he was able to cut paper with it. Officer McKeever never saw defendant holding the box cutter and did not see him argue with or threaten anyone. * * *

As the jury was charged, a “dangerous instrument” is “any instrument, article or substance, . . . which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or other serious physical injury” … . An object “becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury” … .

Here, there was no proof that defendant used the box cutter, attempted to use it, or threatened to use it as required under the plain terms of the statute in order for it to be a dangerous instrument … . People v Knowles, 2019 NY Slip Op 08770, First Dept 12-5-19

 

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DEFENDANT DEMONSTRATED HE WAS UNLIKELY TO REOFFEND; THEREFORE, DESPITE THE SERIOUSNESS OF HIS SEX OFFENSES, HE WAS ENTITLED TO A REDUCTION OF HIS RISK LEVEL FROM THREE TO ONE (SECOND DEPT).

The Second Department, modifying the SORA court, in a comprehensive, full-fledged opinion by Justice Austin, determined defendant sex offender was entitled to a downward modification of his risk assessment from level three to level one:

The defendant’s submissions demonstrated that, through his long-term sobriety, strong family support, faith-based and law abiding lifestyle, continuous employment despite his numerous physical disabilities and age, his risk of reoffending is so diminished that a further reduction from his current risk level two to risk level one is appropriate … . * * *

… [I]f a defendant served his or her sentence, rehabilitated himself or herself, and demonstrated no actual likelihood of reoffending, a reduction to a risk level one classification from a level three classification should be a possibility. …

In modifying the Supreme Court’s order which reduced the defendant’s sex offender risk level classification from three to two, and thereby granting the petition to further reduce the defendant’s sex offender risk level designation to a level one, we are not signaling a departure from our strict interpretation of the Guidelines and the legislative history of SORA. Rather, we are following the law, and the policy underlying it, as it applies to this defendant. That is, it is not out of sympathy for his physical condition nor with a blind eye to the defendant’s significant criminal past that we render our determination. Rather, we consider these as well as all of the factors—positive and negative—presented at the hearing on his petition for a downward modification in deciding the singular question presented: Did the defendant establish, by clear and convincing evidence, that the risk he poses to the community as a convicted sex offender warrants a downward modification to level one? We answer that question in the affirmative.

To hold otherwise ignores the sincere, positive strides the defendant has made to be a productive, positive member of society. By using the disturbing nature of one’s crime as the tipping point in the analysis of a petition such as the one before this Court comes dangerously close to saying, if not holding, that once one has committed a sex crime and has been designated a sex offender level, there is no way he or she can ever be rehabilitated to a legally sufficient extent to warrant a downward modification to the lowest level of supervision. If that were so, then the cited portions of the Guidelines and Correction Law § 168-o(2), which allow annual reevaluation of a defendant’s risk level after it is initially established, would be rendered without meaning and illusory. People v Davis, 2019 NY Slip Op 08720, Second Dept 12-4-19

 

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PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, ordering a new trial, determined prosecutorial misconduct deprived defendant of a fair trial:

… [D]uring summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor denigrated the defense and disparaged the defendant, referring to his self-defense claim as “ridiculous,” “insulting,” and “ludicrous,” and informing the jury that the defendant would “tell you anything” in an effort to “sell you” a story. The prosecutor described the defendant as a “hothead” and a “punk” who could not “take [a] beating like a man” … . Moreover, the prosecutor impinged on the defendant’s right to remain silent before arrest by arguing that he could not have acted in self-defense during the altercation because he did not call the 911 emergency number … . Further, the prosecutor improperly invoked the jury’s sympathy for the complainant … , vouched for the complainant’s credibility … , and interjected her own sense of moral retribution with respect to the complainant’s entitlement to use physical force against the defendant, while misleading the jury as to the law on justification … . People v Dawson, 2019 NY Slip Op 08689, Second Dept 12-4-19

 

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BECAUSE THE B MISDEMEANOR CARRIES DEPORTATION AS A POTENTIAL PENALTY, DEFENDANT IS ENTITLED TO A JURY TRIAL (SECOND DEPT).

The Second Department reversed defendant’s conviction based upon a recent Court of Appeals case which held a defendant charged with a misdemeanor which carries deportation as a potential penalty is entitled to a jury trial:

… [T]he defendant, a noncitizen, is entitled to a jury trial under the Sixth Amendment of the United States Constitution because the charged crime of attempted assault in the third degree, a class B misdemeanor, carries a potential penalty of deportation (see People v Suazo, 32 NY3d 491). We note that because People v Suazo was decided after this matter was argued but before it was decided, the change of the law set forth therein therefore applies to the defendant … . Accordingly, we reverse the judgment of conviction and grant a new trial. People v Ahsan, 2019 NY Slip Op 08571, Second Dept 11-27-19

 

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PARKER WARNINGS WERE INADEQUATE BUT THE ERROR WAS NOT PRESERVED FOR APPEAL; HOWEVER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE ENHANCED SENTENCE; SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined the Parker warnings were inadequate. Although the error was not preserved for appeal, defense counsel was deemed ineffective for failing to challenge the enhanced sentence:

Defendant contends that Supreme Court erroneously imposed the enhanced sentence given that it did not specifically inform him as part of the Parker admonishment that a consequence of failing to appear for sentencing was the imposition of a greater sentence. … This claim is unpreserved inasmuch as the record does not reveal that defendant objected to the enhanced sentence or moved to withdraw his guilty plea … . The lack of preservation, however, is attributable to the deficiencies of defendant’s trial counsel, who represented him both during the plea proceedings and at sentencing. Counsel was ineffective in failing to challenge the enhanced sentence as there was no strategic reason for failing to do so, particularly in light of the clear omissions that were made by Supreme Court in administering the Parker admonishment … . In view of this, we excuse the lack of preservation and address the merits … . The record reveals that Supreme Court did not provide defendant with a sufficient Parker admonishment that included the sentencing consequences and that it imposed the enhanced sentence without affording him an opportunity to withdraw his plea. Accordingly, we vacate the sentence and remit the matter to Supreme Court to either impose the agreed-upon sentence or provide defendant with an opportunity to withdraw his guilty plea … . People v Barnes, 2019 NY Slip Op 53934, Third Dept 11-27-19

 

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CONSPIRACY COUNTS FATALLY FLAWED, NO OVERT ACT WAS ALLEGED, CONVICTIONS REVERSED, COUNTS DISMISSED (THIRD DEPT),

The Third Department, reversing defendant’s conspiracy convictions, determined the conspiracy counts were fatally flawed because no overt act was alleged:

“A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20 [emphasis added] … ). Here, the two conspiracy counts neither allege that an overt act was committed nor include factual allegations describing such an act. There is no assertion that defendant took any action beyond agreeing “to engage in or cause the performance of a class B felony.” Accordingly, defendant’s convictions of conspiracy in the fourth degree under count 3 … and count 2 … must be reversed and the sentences imposed thereon vacated. Given that these two conspiracy counts were jurisdictionally defective and not subject to amendment (see CPL 200.50 [7] [a]; 200.70 [2] [a], [b] …), said counts are dismissed … . People v Mackie, 2019 NY Slip Op 53940, Third Dept 11-27-19

 

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AFTER AN INITIAL WAIVER OF HIS RIGHT TO REMAIN SILENT, DEFENDANT BECAME INCREASINGLY UNWILLING TO ANSWER QUESTIONS AND FINALLY SAID “MAYBE” HE SHOULD GET A LAWYER BECAUSE HE DIDN’T WANT TO INCRIMINATE HIMSELF, FROM THAT POINT ON THE INTERROGATION VIDEO SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s motion to suppress statements made after the assertion of his right to counsel should have been suppressed:

… [T]he People admitted into evidence a DVD video recording of the first 50 minutes and 55 seconds of defendant’s custodial interrogation. … A review of that video recording shows that defendant was advised of and acknowledged his Miranda rights in writing roughly 16 minutes into the custodial interrogation, after having made small talk with the detective questioning him. For the next 24 minutes, defendant openly and respectfully answered questions regarding the events that transpired earlier that morning, including whether he entered the apartment building, which he maintained that he did not. However, 40 minutes into the interview, defendant became increasingly quiet and less eager to engage in conversation. Indeed, the detective spoke for roughly 3½ minutes, with little to no contribution from defendant, and attempted to appeal to defendant “as a father.” Defendant asked if he would be at the police station all weekend, to which the detective said, ‘no.’ The detective then asked defendant to tell him what had happened, but he was met with silence, prompting him to ask again. In response, defendant stated, “maybe I should get a lawyer. I completely understand what you’re saying and I agree with you, but I don’t want to f**k myself.” In our view, defendant’s marked change in expression and demeanor at this stage of the interrogation, together with his reference to an attorney and his clear statement that he did not want to incriminate himself, constituted an unequivocal request for counsel and an exercise of his right to remain silent … . Thus, the video recording of the interrogation should have been stopped at 48 minutes and 48 seconds, just before defendant unequivocally invoked his right to counsel. Accordingly, County Court should have granted defendant’s motion to suppress all statements made thereafter. People v Harris, 2019 NY Slip Op 53943, Third Dept 11-27-19

 

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE “INNOCENT POSSESSION OF A WEAPON” DEFENSE, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s possession of a weapon convictions, determined the jury should have been instructed on the “innocent possession of a weapon” defense. Defendant testified the person who had just robbed him dropped the sweatshirt, which had a handgun in the pocket. According to the defendant’s testimony, just as defendant picked up the sweatshirt the police pulled up:

The Criminal Jury Instructions provide, in relevant part, that “[a] person has innocent possession of a weapon when he or she comes into possession of the weapon in an excusable manner and maintains possession, or intends to maintain possession, of the weapon only long enough to dispose of it safely. There is no single factor that by itself determines whether there was innocent possession. In making that determination, [the jury] may consider any evidence which establishes that the defendant had knowing possession of a weapon, the manner in which the weapon came into the defendant’s possession, the length of time the weapon remained in his/her possession, whether the defendant had an intent to use the weapon unlawfully or to safely dispose of it, the defendant’s opportunity, if any, to turn the weapon over to the police or other appropriate authority, and whether and how the defendant disposed of the weapon” (CJI2d[NY] Temporary and Lawful Possession).

Here, defendant’s testimony, if credited, provides sufficient facts from which the jury could find a lawful basis for defendant having temporarily and innocently possessed the subject pistol without having had any intent to use it in a dangerous manner or an opportunity to subsequently turn it over to police … . People v Mack, 2019 NY Slip Op 53930, Third Dept 11-27-19

 

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