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STATEMENTS MADE BY THE DEFENDANT WHEN HE WAS HANDCUFFED IN THE BACK SEAT OF A POLICE CAR SHOULD HAVE BEEN SUPPRESSED, TANGIBLE EVIDENCE RETRIEVED AS A RESULT OF THE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS WELL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant’s statements, made when he was handcuffed in the back seat of a police car, should have been suppressed. Defendant had possession of a wallet and had demanded money from the owner of the wallet in exchange for its return. The owner of the wallet went to the police. The police spoke to the defendant on the phone, and he again demanded money for the wallet. The defendant again demanded money for the wallet when the police went to his house. The wallet was retrieved after defendant made the statements in the police car, so the wallet should have been suppressed as well:

Not only was the defendant handcuffed in the back seat of a police vehicle, the detectives testified that the defendant was bargaining with them for his freedom by offering to get the wallet if they would remove the handcuffs and release him. Detective Bookstein specifically testified that the defendant was not free to leave the police vehicle. The record also demonstrates that the statements that the defendant made to the detectives during their conversation with him about the wallet were the result of the functional equivalent of interrogation and should have been suppressed … . People v Torres. 2019 NY Slip Op 03380, Second Dept 5-1-19

 

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FINDING OF CIVIL CONTEMPT AGAINST THE CHAIR OF THE NYS PAROLE BOARD WAS WARRANTED, ALTHOUGH ORDERED TO CONDUCT A DE NOVO HEARING ON PETITIONER-INMATE’S APPLICATION FOR RELEASE ON PAROLE, THE EVIDENCE SUPPORTED THE CONCLUSION THAT THE BOARD DENIED PAROLE BASED ON THE SEVERITY OF THE OFFENSE ALONE, WITHOUT CONSIDERING THE STRONG FACTORS WHICH FAVORED RELEASE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the Chair of the NYS Parole Board was properly held in contempt for failing to comply with an order granting petitioner, in inmate who had served 40 years in prison for murdering a police office, a de novo hearing on his application for parole release. The court noted that this is the first time a court had held a parole board chair in contempt. The court found that the Board based its denial of parole solely on the severity of the offense, and did not consider the strong factors favoring release, in violation of the order:

Here, under the unique facts of this particular case, we agree with the Supreme Court’s exercise of its discretion in granting the petitioner’s motion to hold the appellant … in civil contempt for the Board’s failure to comply with the Supreme Court’s judgment dated October 2, 2015. In the judgment dated October 2, 2015, the Supreme Court, after concluding, among other things, that the Board’s determination to deny parole release was not supported by an application of the factual record to the statutory factors set forth in Executive Law § 259-i, that the Board’s determination was based exclusively on the severity of the petitioner’s offense, and that there was no rational support in the record for the Board’s determination, remitted the matter to the Board “to make a de novo determination on petitioner’s request for parole release” to be held before a different panel of the Board.

As previously noted, the Board did not appeal from that judgment. Rather, it purported to comply with the judgment by rendering a new determination following a de novo interview before a different panel and, in its written decision and in the transcript of the interview, purported to comply with its responsibilities to consider the requisite statutory factors. However, the Supreme Court, after conducting an evidentiary hearing, decided that the Board again denied parole release exclusively on the basis of the underlying conviction without giving consideration to the statutory factors. Consequently, the Supreme Court held that a finding of civil contempt was warranted. Matter of Ferrante v Stanford, 2019 NY Slip Op 03334, Second Dept 5-1-19

 

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ALTHOUGH THE POLICE RECEIVED AN ANONYMOUS TIP THAT A MAN MATCHING DEFENDANT’S DESCRIPTION HAD A GUN, THE POLICE SAW NO SIGN OF CRIMINAL ACTIVITY WHEN THEY APPROACHED AND QUESTIONED THE DEFENDANT, THE SUBSEQUENT SEIZURE AND FRISK OF THE DEFENDANT WAS ILLEGAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing defendant’s conviction, determined the police illegally seized and frisked the defendant when they had only a level two right to inquire. The police were given an anonymous tip that a black man in a bodega wearing a black coat with a fur hood had a gun. The defendant matched the description, but he was seized and frisked in the absence of any sign of criminal activity. The fact that the anonymous tip tended to identify a specific person was not enough to justify the seizure. The handgun should have been suppressed:

The police may not stop and frisk a person based solely on information furnished by an anonymous source that the person is carrying a gun … . Since an anonymous tip “seldom demonstrates the informant’s basis of knowledge or veracity,” it can only give rise to reasonable suspicion if accompanied by sufficient indicia of reliability … . The tip must “be reliable in its assertion of illegality, not just in its tendency to identify a determinate person” .​.. . …

One of the officers asked defendant if everything was okay, and he replied in the affirmative. Defendant then attempted to pass by the officers and exit the store. He was prevented from exiting when one of the officers “sidestepped to [his] right,” in order to “prevent [defendant] from leaving the store.” The officer testified at the hearing that they “decided to frisk [defendant] for [their] safety, since it came over as male with a firearm and he fit the description.” They walked defendant to the counter, which was 5 to 10 feet away. Defendant put his hands on the counter, and the officers proceeded to frisk him. The officer testified that defendant placed his hand inside his jacket pocket, whereupon he used force to pull defendant’s wrist from the pocket. The officer testified that when he grabbed defendant’s wrist a silver firearm fell to the ground.

The People argue that defendant’s action in putting his hand in his pocket gave rise to reasonable suspicion. The problem with this argument is that defendant was already seized prior to this point.  People v Brown, 2019 NY Slip Op 03305, First Dept 4-30-19

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POLICE EFFECTIVELY SEIZED DEFENDANT BY BLOCKING DEFENDANT’S VEHICLE WITH TWO POLICE CARS, BECAUSE THE SEIZURE TOOK PLACE IN THE ABSENCE OF REASONABLE SUSPICION A PARTICULAR PERSON WAS INVOLVED IN A CRIME THE TANGIBLE EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and suppressing the tangible evidence, determined the police effectively seized defendant by blocking in defendant’s vehicle with two police cars without sufficient cause:

The conviction arises from a police encounter during which an officer approached the parked vehicle in which defendant was a passenger and observed that defendant was in possession of a handgun. We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure of the vehicle, and thus Supreme Court erred in refusing to suppress both the tangible property seized, i.e., the weapon, and statements defendant made to the police at the time of his arrest. Here, police officers effectively seized the vehicle in which defendant was riding when their two patrol cars entered the parking lot in such a manner as to prevent the vehicle from being driven away … . The police had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted them to approach the vehicle and make a common-law inquiry of its occupants. They did not, however, have “reasonable suspicion that [a] particular individual was involved in a felony or misdemeanor” to justify the seizure that occurred here …, and thus the weapon and defendant’s statements should have been suppressed. People v Suttles, 2019 NY Slip Op 03158, Fourth Dept 4-26-19

 

THE ATTORNEY GENERAL DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT IN THIS CRIMINAL CASE BECAUSE NO REQUEST WAS MADE BY THE SUPERINTENDENT OF THE STATE POLICE (FOURTH DEPT).

The Fourth Department reversed defendant’s weapons possession and sale convictions because the state Attorney General did not have the authority to prosecute the case. The Attorney General’s authority to prosecute a criminal case is triggered when a request is made by the head of an appropriate agency, here the Superintendent of the State Police. No such request was in the stipulated record on appeal:

It is well settled that the Attorney General lacks general prosecutorial authority and has the power to prosecute only where specifically permitted by statute … . As relevant here, Executive Law § 63 (3) grants the Attorney General prosecutorial authority “[u]pon request of . . . the head of any . . . department, authority, division, or agency of the state” (emphasis added). Although the People assert that the Attorney General had authority to prosecute this matter under section 63 (3) based on a request made by the State Police, such a request would confer that authority only if made by the head of the division, i.e., the Superintendent of State Police … . Moreover, “the State bears the burden of showing that the [division or] agency head has asked for the prosecutorial participation of the Attorney General’s office” … . People v Wassell, 2019 NY Slip Op 03187, Fourth Dept 4-26-19

 

COUNTY COURT COULD NOT LEGALLY FULFILL THE SENTENCING PROMISE THAT INDUCED DEFENDANT’S GUILTY PLEA, PLEA VACATED AND THE MATTER REMITTED FOR THE IMPOSITION OF A SENTENCE WHICH COMPORTS WITH DEFENDANT’S EXPECTATIONS (FOURTH DEPT).

The Fourth Department determined defendant’s guilty plea was induced by a sentencing promise County Court could not fulfill. The plea was vacated and the matter was remitted for imposition of a sentence that comports with defendant’s expectations:

Penal Law § 70.30 (3) provides that “the maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence.” Penal Law § 70.30 (3) further provides that “[i]n the case of an indeterminate sentence, if the minimum period of imprisonment has been fixed by the court . . . , the credit shall also be applied against the minimum period.” That credit, however, “shall not include any time that is credited against the term . . . of any previously imposed sentence . . . to which the person is subject” … . Thus, “a person is prohibited from receiving jail time credit against a subsequent sentence when such credit has already been applied to time served on a previous sentence’ ” … . Inasmuch as defendant was serving a sentence on a prior conviction throughout the instant proceedings, the court could not legally fulfill its promise to credit defendant’s jail time against his sentence in this matter.

It is well established that “[a] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . “Where, as here, the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations” … . People v Mccullen, 2019 NY Slip Op 03180, Fourth Dept 4-26-19

 

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FOR CAUSE JUROR CHALLENGES SHOULD HAVE BEEN GRANTED, JURORS COULD NOT UNEQUIVOCALLY STATE THEY COULD PUT ASIDE THEIR RESERVATIONS AND BE FAIR AND IMPARTIAL, BECAUSE THERE WILL BE A NEW TRIAL AND BECAUSE AN APPELLATE COURT CANNOT CONSIDER ISSUES NOT RULED UPON BY THE TRIAL COURT, THE TRIAL COURT WAS DIRECTED TO CONSIDER TWO EVIDENTIARY ISSUES, ONE RAISED BY THE PEOPLE, AND ONE RAISED BY THE DEFENSE (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction because for cause challenges to two jurors were denied. Neither juror gave unequivocal assurances that she could be fair and impartial, in fact one juror expressly said she would continue to think defendant was involved based solely on his presence in the courtroom. In the interest of judicial economy, because there will be a new trial, the Fourth Department indicated the court erred in finding defendant’s cell phone was lawfully seized from defendant’s vehicle incident to arrest to protect evidence in defendant’s grabbable area from destruction or concealment. The Fourth Department noted it could not consider the People’s argument the cell phone was lawfully seized pursuant to the automobile exception to the warrant requirement because Supreme Court didn’t rule on that issue. The Fourth Department directed Supreme Court to make a ruling. The Fourth Department further directed Supreme Court to rule on whether an unavailable witness’s hearsay statement should be admitted pursuant to defendant’s rights to put on a defense and due process. Defendant had raised that issue but Supreme Court did not rule on it. With respect to the for cause juror challenges, the court wrote:

“It is well settled that a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the [prospective] juror states unequivocally on the record that he or she can be fair and impartial’ “… . Although CPL 270.20 (1) (b) “does not require any particular expurgatory oath or talismanic’ words . . . , [a prospective] juror[] must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent [him or her] from reaching an impartial verdict” … . People v Clark, 2019 NY Slip Op 03231, Fourth Dept 4-26-19

 

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ALTHOUGH THE PRIVATE CITIZEN WAS ACTING AS AN AGENT FOR THE POLICE WHEN SHE RECORDED DEFENDANT’S ADMISSION TO MURDER, DEFENDANT WAS NOT ENTITLED TO A 710.30 NOTICE BECAUSE THE STATEMENT WAS VOLUNTARILY MADE AND NOT SUBJECT TO SUPPRESSION, TWO -JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the failure to provide a CPL 710.30 notice of a statement made by defendant to a private citizen was a mere irregularity, not reversible error, because the statement was not involuntarily made, and therefore was not subject to suppression. The two dissenters argued that it was possible the defendant was induced to make the statement by the promise of sexual relations with the private citizen. Because there was a colorable basis for suppression, the dissenters argued, the defendant was entitled to notice and a hearing. In the recorded statement the defendant admitted to committing murder and explained the details. The decision is extensive and addresses several other substantive issues: (1) Defendant was not entitled to Miranda warnings because he was not subjected to custodial interrogation in that he was incarcerated on another matter when he was questioned and no added constraints were imposed; (2) The prosecutor provided race-neutral explanations for challenges to jurors—one juror’s father and brother had criminal convictions—another juror acknowledged reading books by a writer with anti-police and anti-establishment views; (3) The testimony by a medical examiner who did not conduct the autopsy did not violate defendant’s right of confrontation; and (4) The defendant’s request for an accomplice jury instruction was properly denied because there was no question whether the witness participated in the offense. With respect to the statement recorded by a private citizen for which no 710.30 notice was provided, the court wrote:

… [W]e agree with our dissenting colleagues that the citizen in this case was acting as a police agent at the time she recorded the statements inasmuch as she was acting “at the instigation of the police . . . to further a police objective” … .

We respectfully disagree with our dissenting colleagues, however, on the issue whether the failure to provide the CPL 710.30 notice warrants preclusion of those statements. We conclude that it does not. Where, as here, there is “no colorable basis for suppression of the statement, the failure to give notice [constitutes] a mere irregularity not warranting preclusion” … . In our view, there is no colorable basis for suppression of defendant’s statements to the private citizen. There is no dispute that defendant voluntarily went to the citizen’s home and that he was interested in pursuing a romantic relationship with her. During the entire conversation, wherein defendant admitted committing the homicide, the private citizen made no explicit or implicit promises that she would engage in sexual relations with defendant. Rather, it was defendant who offered to tell her anything she wanted to know after she expressed that she was afraid of him, and then provided her with all of the details concerning the homicide. We thus conclude that the private citizen did not make any statement or engage in any conduct that “create[d] a substantial risk that . . . defendant might falsely incriminate himself”… . ​People v Albert, 2019 NY Slip Op 03227, Fourth Dept 4-26-19

 

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DEFENDANT’S CONVICTIONS FOR PREDATORY SEXUAL ASSAULT AGAINST A CHILD AND RAPE AFFIRMED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE DISSENT, APPLYING A WEIGHT OF THE EVIDENCE ANALYSIS, ARGUED THE EVIDENCE DID NOT RISE TO THE LEVEL OF BEYOND A REASONABLE DOUBT (FOURTH DEPT).

The Fourth Department, in an extensive, fact-specific decision, over a dissent, affirmed defendant’s predatory sexual assault against a child and rape first degree convictions. The child was four when the alleged incident occurred and 11 at the time of the third trial. There was a hung jury in the first trial and the conviction after the second trial was reversed based upon the judge’s handling of a jury note. The principal physical evidence was sperm found on the child’s underwear. No semen was found on the underwear or on the child. There was no injury to the child’s genitals. The defense theory was that the sperm was transferred to the child’s underwear during a wash. The People’s expert testified such a transfer was possible. The appeal came down to a weight of the evidence analysis. The dissent argued the proof did not rise to the level of beyond a reasonable doubt, noting the absence of semen, the lack of injury, the victim’s poor memory and implausible description of the rape, the victim’s affirmative response to the prosecutor’s mistaken question about a second rape (the prosecutor mistakenly thought the two counts of rape in the indictment alleged two separate incidents), and the fact that defendant had no criminal record and no other allegation of inappropriate sexual conduct had ever been made against him. People v Garrow, 2019 NY Slip Op 03238, Fourth Dept 4-26-19

 

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STATEMENT MADE BY THE ASSAULT VICTIM 12 TO 15 MINUTES AFTER THE ASSAULT WAS PROPERLY ADMITTED AS AN EXCITED UTTERANCE (FOURTH DEPT).

The Fourth Department determined a statement made by the victim of an assault 12 to 15 minutes after the assault was admissible under the excited utterance exception to the hearsay rule:

Defendant contends … that County Court erred in permitting a prosecution witness to testify that the victim told him that “the man he was fighting with was the one that cut him” because that statement did not fall under the excited utterance exception to the rule against hearsay. We reject that contention. The victim made the statement approximately 12 to 15 minutes after the assault and while he was being treated in the prison’s infirmary. Testimony at trial established that, at the time of the statement, the victim appeared to be “emotional,” “mad,” “angry,” and “very agitated.” The statement qualified as an excited utterance inasmuch as that statement was “made shortly after the [assault and] . . . while [the victim] was under the extraordinary stress of [his] injuries” … . People v Farrington, 2019 NY Slip Op 03237, Fourth Dept 4-26-19

 

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