The Fourth Department noted: (1) the statutory speedy trial issue is foreclosed by defendant’s guilty plea; (2) the statutory speedy trial issue is foreclosed by the waiver of appeal; (3) the statement-suppression issue is foreclosed by the waiver of appeal; and (4) because defendant pled guilty before Supreme Court decided the constitutional speedy trial issue that issue was abandoned. People v Hardy, 2019 NY Slip Op 04555, Fourth Dept 6-7-19
The Fourth Department determined the test for double jeopardy under the state constitution is the same as under the federal constitution:
“Under the Federal Constitution, double jeopardy arises only upon separate prosecutions arising out of the same offence’ ” … . The United States Supreme Court employs a “same-elements” test, also known as the Blockburger test (Blockburger v United States, 284 US 299 [1932]), that “inquires whether each offense contains an element not contained in the other; if not, they are the same offence’ and double jeopardy bars additional punishment and successive prosecution” … . Here, the elements of DWI (see Vehicle and Traffic Law § 1192 [2], [3]) and leaving the scene of a property damage incident without reporting (see § 600 [1] [a]) are not the same; among other things, a person does not need to be intoxicated to be found guilty of leaving the scene of a property damage incident without reporting, and does not need to cause property damage to be found guilty of DWI. …
… [T]he Court of Appeals has held that “[t]he Double Jeopardy Clauses in the State and Federal Constitutions are nearly identically worded, and we have never suggested that state constitutional double jeopardy protection differs from its federal counterpart” … , the Court of Appeals set forth the Blockburger test, not the same conduct test, when analyzing a defendant’s claim that the double jeopardy clauses of both the Federal and State Constitutions barred a subsequent prosecution. We therefore conclude that the constitutional double jeopardy analysis is the same under federal and state law, and that there is no constitutional double jeopardy violation here … . Matter of McNerlin v Argento, 2019 NY Slip Op 04554, Fourth Dept 6-7-19
The Fourth Department noted that appellate review of a court’s determination of the sufficiency of the evidence presented to the grand jury is not reviewing upon appeal of a conviction based upon legally sufficient trial evidence:
Defendant’s contention regarding the legal sufficiency of the evidence with respect to the operability of the stun gun is not preserved for our review inasmuch as her motion for a trial order of dismissal was not ” specifically directed’ at [that] alleged” deficiency in the proof … . In any event, the evidence, which included the testimony of a firearms examiner who tested the device at issue, viewed in the light most favorable to the People … , is legally sufficient to support the conviction. …
County Court’s determination with respect to the legal sufficiency of the evidence before the grand jury is “not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30 [6] …). People v Washington, 2019 NY Slip Op 04553, Fourth Dept 6-7-19
The Fourth Department determined County Court properly determined the defendant pressured a witness to refuse to testify at trial. Therefore the witness’s grand jury testimony was properly admitted in evidence:
Defendant contends that County Court erred in determining, following a Sirois hearing, that the People presented clear and convincing evidence that defendant “wrongfully made use of his relationship with the victim in order to pressure her to violate her duty to testify” … . …
The People presented evidence that the missing witness was ready and willing to testify while defendant was in jail during the grand jury proceedings but became reluctant after defendant was released and the trial date drew closer. Days prior to the trial, the witness’s mother observed the witness leave with defendant and their child for several hours. When the witness returned to the mother’s home, the witness “started talking about the subpoena that she had received. Started saying things like they can’t do anything to me if I don’t show up. The subpoena wasn’t served properly. There’s nothing that they can do if I don’t show up to court. Things of that nature.” The mother reported to the prosecutor that she had never heard the witness use legal terminology like that before. …
Defendant’s relative also observed the witness in defendant’s home during the time in which law enforcement officers were attempting to locate her on a material witness warrant. Further, although the prosecution never informed the witness of the updated trial schedule following the witness’s failure to appear, the witness appeared at court two days after the Sirois hearing “at the perfect moment to save defendant from the impending admission of her damning grand jury testimony” … . People v Haile, 2019 NY Slip Op 04547, Fourth Dept 6-7-19
The Fourth Department determined defendant, although handcuffed and seated on the backseat of a police car, was not in custody such that his answers to questions, including whether he had anything to drink, should be suppressed. The officer observed defendant commit several traffic infractions, then the defendant got out of the car, staggering. The defendant would not stop and go back to his car when the officer told him to. When the officer caught up to him he smelled alcohol. The officer then handcuffed the defendant and had him sit on the backseat of the police car with his feet outside the car on the ground:
Contrary to defendant’s contention, we conclude that his answers to the sergeant’s questions were not the product of a custodial interrogation requiring Miranda warnings. ” It is well established that not every forcible detention constitutes an arrest’ ” … and, under the circumstances noted above, we agree with the court that the sergeant’s use of handcuffs did not transform the detention into a de facto arrest. Rather, the sergeant’s use of the handcuffs to effect the detention was warranted in light of the threat that defendant might take additional evasive action … .
We further conclude that seating defendant on the back seat of the police vehicle did not transform the sergeant’s questioning into a custodial interrogation. The sergeant lawfully, although forcibly, detained defendant for investigatory purposes based on his observation of defendant committing several traffic infractions … . Given defendant’s visible intoxication, staggering gait, and prior evasive actions, a ” less intrusive means of fulfilling the police investigation’ ” than seating defendant partially in the police vehicle ” was not readily apparent’ ” … . Here, the sergeant’s “action fell short of the level of intrusion upon defendant’s liberty and privacy that constitutes an arrest” … . In addition, the sergeant’s questions were investigatory rather than custodial in nature … . People v Mcdonald, 2019 NY Slip Op 04546, Fourth Dept 6-7-19
SUPPRESS SUPPRESSION
The Fourth Department determined the blocking of the car in which defendant was a passenger by parking at the entrance to the driveway was only a permissible level two intrusion:
The charges against defendant arose after the police, who were investigating a recent stabbing, encountered defendant in a vehicle matching the description and anticipated location of the stabbing suspect’s vehicle given in a police dispatch.
We conclude that the police conduct was justified in its inception and at every subsequent stage of the encounter leading to defendant’s arrest … . Contrary to defendant’s contention, the police action in pulling up behind the subject vehicle, which had parked in defendant’s driveway after passing the officers’ patrol car, constituted only a level two intrusion … despite the fact that a police vehicle blocked the subject vehicle’s egress from the driveway … . The police at that point had the requisite founded suspicion to justify the level two intrusion.
The police escalated the encounter to a level three intrusion when they approached defendant, who had begun to exit the vehicle, and ordered him to remain in the vehicle … . Evaluating the totality of the circumstances … , we conclude that the police conduct was justified by the officers’ reasonable suspicion that defendant was the suspect described in the dispatch … . The officers found defendant less than two miles away from the scene of the stabbing, which had occurred approximately 20 minutes earlier. Defendant’s gender, race, height, and weight matched the description of the stabbing suspect. Furthermore, witnesses at the scene of the stabbing informed the police that the suspect left the scene in a small silver vehicle driven by a black female and that the vehicle may have been headed toward a residence on Mark Avenue. Defendant was a passenger in a silver vehicle driven by a black female, and the driveway in which the driver parked the vehicle was 50 to 75 yards from Mark Avenue. People v Pettiford, 2019 NY Slip Op 04620, Fourth Dept 6-7-19
SUPPRESSION, SUPPRESS, DE BOUR
The Fourth Department determined that, although the suppression court determined the police officer had a founded suspicion of criminality when he ordered defendant out of the car, a founded suspicion of criminality did not justify ordering the defendant to place his hands on the patrol car in preparation for a pat search. However. the officer testified he smelled marijuana, which would justify and search. Because the court did not rule on that issue, the matter was sent back for a ruling:
Upon approaching the vehicle, the officer observed that there were two occupants, one of whom, i.e., defendant, was moving around in the backseat and putting his hands in his front pocket as if he was “stuffing something either in his coat or in his pants as if to conceal it from [the officer].” … The officer asked the driver and defendant for identification and thereafter learned that the driver’s license of the driver had been revoked and that defendant did not have a driver’s license.
The officer directed defendant to exit the vehicle and place his hands on the patrol car so that the officer could conduct a pat search. Defendant exited the vehicle as directed but thereafter fled, discarding components of a 9 millimeter Glock semiautomatic pistol as he ran. …
Because the driver pulled over of his own volition before the officer activated his emergency lights to initiate a traffic stop, the officer needed only an articulable basis to lawfully approach the occupants of the vehicle and request information … . That basis was supplied by the officer’s observation that the vehicle was being operated in violation of Vehicle and Traffic Law § 375 (2) (a) (1) … . Thus, the officer’s conduct “was justified in its inception” … .
The court determined that the officer had a founded suspicion of criminality prior to ordering defendant to exit the vehicle for the pat search. A founded suspicion of criminality standing alone, however, was insufficient to justify the officer’s conduct in ordering defendant to place his hands on the patrol car in preparation for a pat search … . Nevertheless, in making its determination, the court credited the officer’s testimony that he smelled fresh marihuana emanating from the vehicle and was experienced in detecting marihuana. It is well settled that “[t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants” … . People v Green, 2019 NY Slip Op 04608, Fourth Dept 6-7-19
The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that defendant’s complaints about his assigned counsel were sufficient to warrant further inquiry by the court:
… [D]efendant “articulated complaints about his assigned counsel that were sufficiently serious to trigger the court’s duty to engage in an inquiry regarding those complaints”… At a pretrial appearance, defendant requested that the court assign him new counsel because, among other things, defense counsel had failed to file discovery demands and omnibus motions. After defendant’s request, defense counsel erroneously stated, “[t]hose were filed already,” and the court stated, “I have them here. I’m holding them in my hand.” However, the People concede that, although certain discovery demands were served on the People, defense counsel never filed any omnibus motions.
Upon being told that omnibus motions had been filed, defendant informed the court that he had never received them. The court replied, “Well, that’s a different issue, okay? So you’ve got to get a copy of your paperwork, all right? What else?” The court never conducted an inquiry into defendant’s serious complaint that defense counsel failed to file any omnibus motions and, instead, proceeded under the mistaken belief that they had been filed. Although “[t]he court might well have found upon limited inquiry that defendant’s request was without genuine basis, . . . it could not so summarily dismiss th[at] request” based on a mistaken belief that omnibus motions had been filed … . Thus, we conclude that the court violated defendant’s right to counsel by failing to make a minimal inquiry concerning his serious complaint, and we therefore reverse the judgment and grant a new trial … . People v Edwards, 2019 NY Slip Op 04537, Fourth Dept 6-7-19
The Fourth Department, vacating defendant’s guilty plea, determined defendant should have been given the opportunity to explain his reasons for requesting a new attorney:
… [D]uring the plea colloquy, defendant attempted to inform the court that he was pleading guilty only because he was not receiving effective assistance of counsel. Although vague and conclusory complaints about counsel generally are insufficient to trigger the court’s duty to make an inquiry … , the court here “failed to provide defendant with an opportunity to explain his complaints” … . The court refused to accept defendant’s pro se letter regarding the matter and did not otherwise allow defendant to expand upon his claim of ineffective assistance of counsel. Defendant’s “request may well have been a frivolous delaying tactic” … . Nevertheless, we conclude that the court had “no basis to completely cut off the discussion without hearing any explanation” … . A “defendant must at least be given an opportunity to state the basis for his [or her] application” … . People v Jones, 2019 NY Slip Op 04543, Fourth Dept 6-7-19
The Fourth Department noted that, where a defendant is not sentenced as a predicate felon, the minimum sentence is one-third of the maximum, not one-half of the maximum:
We note, however, that the court imposed an illegal sentence of 3½ to 7 years’ imprisonment on defendant’s conviction for CPW in the third degree. Because defendant was not sentenced as a predicate felon, the minimum period of her indeterminate sentence on this conviction must be one-third of the maximum period, not one-half as fixed by the court (see Penal Law § 70.00 [3] [b]). “Although the issue is not raised by either party, we cannot allow an illegal sentence to stand” … . We therefore modify the judgment by reducing defendant’s sentence on that count to an indeterminate term of 2⅓ to 7 years’ imprisonment. People v Simpson, 2019 NY Slip Op 04538, Fourth Dept 6-7-19
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