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PAROLE OFFICER’S SEARCH OF PAROLEE’S APARTMENT, BASED UPON A TIP FROM A PERSON KNOWN TO THE PAROLE OFFICER, WAS SUPPORTED BY REASONABLE SUSPICION, TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined that the parole officer’s, Rosa’s, search of defendant-parolee’s apartment, which was based on a tip from a person known to the parole officer, was supported by reasonable suspicion:

Although a parolee does “not surrender his [or her] constitutional rights against unreasonable searches and seizures[,] . . . what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is” … . Accordingly, a search of a parolee undertaken by a parole officer is constitutional if “the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer’s duty . . . [and was] substantially related to the performance of duty in the particular circumstances” … . A parole officer’s duty is twofold and sometimes inconsistent in nature because a parole officer not only “has an obligation to detect and to prevent parole violations for the protection of the public from the commission of further crimes[, but] he [or she] also has a responsibility to the parolee to prevent violations of parole and to assist [the parolee] to a proper reintegration into [the parolee’s] community” … .

Here, there can be little doubt that Rosa’s search of defendant’s residence due to the informant’s tip was reasonably related to Rosa’s duties as a parole officer … . Therefore, the key inquiry is whether Rosa, based upon the information provided by the informant, had reasonable suspicion to conduct the search … . Rosa’s testimony at the suppression hearing revealed that the information was not from an anonymous tipster (compare People v Burry, 52 AD3d at 858), but rather was from another parolee with whom Rosa was familiar and with whom he had interacted prior to receiving the information. Rosa testified that the informant indicated that he or she had firsthand knowledge of the drug activity at defendant’s residence. Therefore, based upon the circumstances of this case — including that defendant had been on parole for less than a month and therefore had no proven track record of compliance with parole rules — Rosa’s search of defendant’s residence was founded on reasonable suspicion and, as such, was lawful … . People v Wade, 2019 NY Slip Op 03851. Third Dept 5-16-19

 

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MOLINEUX/SANDOVAL HEARING IN THE HARVEY WEINSTEIN SEXUAL MISCONDUCT PROSECUTION WAS PROPERLY CLOSED TO THE PUBLIC AND THE RECORD OF THE HEARING WAS PROPERLY SEALED, NEWS-MEDIA COMPANIES’ PETITION TO UNSEAL THE RECORD DENIED (FIRST DEPT).

The First Department denied the Article 78 petition brought by news-media companies seeking to unseal the Molineux/Sandoval hearing transcript in the felony sexual misconduct prosecution of Harvey Weinstein. The presiding judge had closed the hearing to the public and sealed the record of it:

While the First Amendment guarantees the public and the press a qualified right of access to criminal trials … , this right of access may be limited where courtroom closure is necessitated by a compelling state governmental interest, and where the closure is narrowly tailored to serve that interest … . Such compelling interests may include the defendant’s right to a fair trial, including the right to “fundamental fairness in the jury selection process” … . …

Proceedings cannot be closed unless specific findings are made on the record, demonstrating that “closure is essential to preserve higher values and is narrowly tailored to serve that interest” … . Where the interest asserted is the right of the accused to a fair trial, specific findings must be made demonstrating that, “there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent,” and “reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights” … .

The subject matter of the Molineux /Sandoval hearing – allegations of prior uncharged sexual offenses by the defendant, the admissibilty of which is disputed – was likely to be prejudicial and inflammatory. Further, some or all of the allegations may have been determined to be inadmissible at trial, or may not be offered at trial even if found potentially admissible. Contrary to petitioners’ suggestion, the People have represented that some of the information has not yet been made public. Matter of New York Times Co. v Burke, 2019 NY Slip Op 03903, First Dept 5-16-19

 

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CELL SITE LOCATION INFORMATION (CSLI) SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE BECAUSE IT WAS PROCURED WITHOUT A WARRANT, ERROR HARMLESS HOWEVER, SENTENCES FOR CRIMINAL SEXUAL ACT AND CRIMINAL IMPERSONATION SHOULD HAVE BEEN CONCURRENT (SECOND DEPT).

The Second Department determined the cell site location information (CSLI) should not have been admitted because the information was procured without a warrant. The error was deemed harmless. The Second Department further determined the sentences for criminal sexual act and criminal impersonation should have been concurrent:

The defendant contends that the People violated his federal constitutional right against unreasonable searches and seizures (see US Const Amend IV) by obtaining his historical cell site location information (hereinafter CSLI) without first obtaining a warrant. Although the defendant did not object on this ground to the admission of the CSLI at trial, his contention has merit and should be considered in light of the United States Supreme Court’s recent holding in Carpenter v United States (_____ US _____, 138 S Ct 2206). Contrary to the People’s contention, under the circumstances, the trial court’s order requiring release of the CSLI under the Stored Communications Act (18 USC § 2703[d]), which order made no express finding of probable cause, was not effectively a warrant supported by probable cause … . …

As the People correctly concede, because criminal sexual act in the first degree (Penal Law § 130.50[1]) constituted one of the offenses and a material element of the other offense, criminal impersonation in the first degree (Penal Law § 190.26[1]), the trial court should not have imposed consecutive sentences on these convictions … . People v Taylor, 2019 NY Slip Op 03823, Second Dept 5-15-19

 

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PROBABLE CAUSE FOR THE SEARCH OF AN APARTMENT DEPENDED UPON INFORMATION FROM THE CONFIDENTIAL INFORMANT, A DARDEN HEARING WAS THEREFORE NECESSARY, MATTER REMITTED FOR THE HEARING (SECOND DEPT).

The Second Department determined Supreme Court should have held a Darden hearing because the detective observed the confidential informant (CI) enter the building but did not observe the CI go to the apartment where the drugs were allegedly purchased. Therefore probable cause for the search of the apartment depended upon the CI’s information. The appeal was held in abeyance and the matter was remitted for the hearing:

The Court of Appeals has held that a Darden hearing is necessary where there is insufficient evidence to establish probable cause without information provided by a confidential informant … . “[A] Darden rule is necessary in order to fulfill the underlying purpose of Darden: insuring that the confidential informant both exists and gave the police information sufficient to establish probable cause, while protecting the informant’s identity. The surest way to accomplish this task is to produce the informant for an in camera examination” …  . This procedure is “designed to protect against the contingency, of legitimate concern to a defendant, that the informer might have been wholly imaginary and the communication from him [or her] entirely fabricated”  … . “[T]he court should conduct an in camera inquiry outside the presence of defendant and his [or her] counsel, and make a summary report regarding the existence of the informer and communications made by the CI to the police, taking precautions to protect the anonymity of the CI to the maximum extent possible” … . People v Nettles, 2019 NY Slip Op 03816, Second Dept 5-15-19

 

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DEFENDANT’S PHONE CONVERSATION WITH HIS MOTHER SHOULD NOT HAVE BEEN ADMITTED AS AN ADOPTIVE ADMISSION, SENTENCE FOR CRIMINAL POSSESSION OF A WEAPON SHOULD HAVE BEEN CONCURRENT WITH THE SENTENCE FOR MURDER (SECOND DEPT).

The Second Department determined a recording of defendant’s phone conversation with his mother, made when defendant was in jail, should not have been admitted as an adoptive admission. The error was deemed harmless however. The Second Department further determined that the sentences for criminal possession of a weapon should be concurrent with the sentence for murder. There was no evidence the weapon was possessed for an unlawful purpose other than the shooting:

The defendant contends that the Supreme Court should not have permitted the People to introduce into evidence, as an adoptive admission of guilt, a recording of a telephone call that he made to his mother while he was incarcerated at Rikers Island Correctional Facility. We agree. “Generally, an adoptive admission is allowed when a party acknowledges and assents to something already uttered by another person, which thus becomes effectively the party’s own admission” . Here, the People failed to establish that the defendant assented to the statements uttered by his mother during the telephone call … . …

The evidence adduced at trial failed to establish that the defendant possessed the gun for an unlawful purpose unrelated to shooting at the intended victim, resulting in the death of the victim (see Penal Law § 265.03[1][b]…), or that his possession of a gun was separate and distinct from his shooting of the victim (see Penal Law § 265.03[3] … ). Accordingly, the terms of imprisonment imposed upon the defendant’s convictions of criminal possession of a weapon in the second degree should run concurrently with the sentence imposed upon his conviction of murder in the second degree. People v King, 2019 NY Slip Op 03813, Second Dept 5-15-19

 

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DEFENDANT PLED GUILTY TO THE CHARGES IN TWO INDICTMENTS, WITH RESPECT TO ONE OF THE INDICTMENTS, COUNSEL WHO NEGOTIATED THE PLEA OFFER HAD BEEN RELIEVED AS DEFENSE COUNSEL BECAUSE OF A CONFLICT OF INTEREST, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department reversed defendant’s convictions by guilty plea because defense counsel had a conflict of interest:

The defendant was charged under Indictment No. 13-00668 with murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. The defendant was later charged under Indictment No. 14-00627 with assault in the second degree and assault in the third degree. Following a pretrial hearing on Indictment No. 13-00668, the defendant’s counsel (hereinafter the attorney), who represented the defendant on the charges under both Indictment Nos. 13-00668 and 14-00627, learned that he had a conflict of interest with the defendant, as the attorney’s law office also represented, on unrelated charges, the prosecution’s principal witness in the case under Indictment No. 13-00668. The witness was to testify that he saw the defendant shoot and kill the unarmed victim. The County Court granted the attorney’s motion to be relieved as defense counsel in the case under Indictment No. 13-00668. However, the attorney remained as the defendant’s counsel on the charges under Indictment No. 14-00627.

The defendant ultimately pleaded guilty to certain charges on both indictments in exchange for a reduced sentence.

… The defendant was denied his right to effective assistance of counsel when the attorney, who had been relieved as the defendant’s counsel on Indictment No. 13-00668 because of a conflict of interest with the prosecution’s principal witness, made a plea offer with respect to that indictment . The defendant failed to receive representation that was conflict-free and singlemindedly devoted to his best interests as required by both the Constitution of the United States and the New York State Constitution … . People v Hill, 2019 NY Slip Op 03810, Second Dept 6-15-19

 

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INCLUSORY CONCURRENT COUNTS OF THE THE AGGRAVATED VEHICULAR HOMICIDE CONVICTIONS SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department dismissed the inclusory concurrent counts of the aggravated vehicular homicide convictions:

As the People correctly concede, the defendant’s convictions of vehicular manslaughter in the first degree (Penal Law § 125.13[3], [4]), vehicular manslaughter in the second degree (Penal Law § 125.12[1]), reckless driving (Vehicle and Traffic Law § 1212), and operating a motor vehicle while under the influence of drugs (Vehicle and Traffic Law § 1192[4]) must be vacated and those counts of the indictment must be dismissed as inclusory concurrent counts of the convictions of aggravated vehicular homicide (see CPL 300.40[3][b]; Penal Law § 125.14[3], [4]…). People v Aniano, 2019 NY Slip Op 03797, Second Dept 5-15-19

 

DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO SAID HE WAS ‘NOT SURE’ HE COULD BE IMPARTIAL SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined defendant’s for cause challenge to a prospective juror should have been granted:

The challenged panelist made a statement reflecting a state of mind likely to preclude the rendering of an impartial verdict (see CPL 270.20[1][b]), and the court did not elicit an unequivocal assurance that in rendering a verdict based on the evidence, the panelist could set aside any bias … . The juror expressly stated that he was “not sure” he could be impartial in a case involving a registered sex offender. His general statement about needing to hear the facts did not address his ability to overcome the specific bias he had expressed. “If there is any doubt about a prospective juror’s impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another”  … . People v Rodriguez, 2019 NY Slip Op 03734, First Dept 5-14-19

 

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JURY NOTE FOUND IN THE COURT FILE BY APPELLATE COUNSEL WAS, AFTER A RECONSTRUCTION HEARING, DETERMINED TO HAVE BEEN A DRAFT WHICH WAS DISCARDED BY THE JURY, AS OPPOSED TO A NOTE OF WHICH COUNSEL SHOULD HAVE BEEN NOTIFIED, THEREFORE THE PROHIBITION OF RECONSTRUCTION HEARINGS WITH RESPECT TO THE HANDLING OF JURY NOTES DID NOT APPLY (CT APP).

The Court of Appeals, over a substantive concurrence, determined, based upon a reconstruction hearing held by Supreme Court at the direction of the Appellate Division, a jury note found in the court file by appellate counsel was a draft that was discarded by the jury. Therefore the strict requirements surrounding notification of counsel of the contents of notes from the jury, and the prohibition of reconstruction hearings in that context, did not apply:

We recently held that where the record does not establish that counsel was provided meaningful notice of the contents of a substantive jury note, “the sole remedy is reversal and a new trial,” not a reconstruction hearing (People v Parker, 32 NY3d 49, 62 [2018]). However, the purpose of the reconstruction hearing at issue here was not to determine whether the court complied with the counsel notice requirements of CPL 310.30 and People v O’Rama (78 NY2d 270, 276 [1991]). Instead, the hearing was to determine whether, in the first instance, Exhibit XIV reflected a “jury . . . request [to] the court for further instruction or information” (CPL 310.30) such that those obligations were triggered. Moreover, the finding of the courts below, following the reconstruction hearing, that Exhibit XIV was a draft note that the jury discarded is supported by the record and, thus, beyond our further review. People v Meyers, 2019 NY Slip Op 03658, CtApp 5-9-19

 

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TRIAL JUDGE ALLOWED THE PROSECUTOR TO QUESTION DEFENDANT ABOUT THE FACTS UNDERLYING PRIOR CONVICTIONS IN VIOLATION OF THE SANDOVAL RULING, CONVICTIONS REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s convictions, determined the trial judge implicitly changed the Sandoval ruling by allowing the prosecutor to cross-examine the defendant about the underlying facts of prior convictions:

Prior to the trial, the Supreme Court conducted a Sandoval hearing (see People v Sandoval, 34 NY2d 371), after which the court ruled that, should the defendant testify on his own behalf, the People would be permitted to ask whether he had two prior felony convictions. However, the People were not permitted to elicit the underlying facts of either of those crimes. …

Without seeking an amendment of the Supreme Court’s Sandoval ruling, the prosecutor then asked whether he was being arrested that day in 2008 “because there was a DNA match of [him] committing a burglary.” Defense counsel objected, the objection was overruled, and the defendant denied that this was true. The prosecutor persisted in that line of inquiry, and asked whether the defendant had been convicted of burglary in the third degree in 2009. The defendant responded that “[y]es [he] was convicted of a case in 2008.” Nonetheless, without asking for a modified Sandoval ruling, the prosecutor brought up, no less than six times, that the 2008 conviction was for burglary and involved DNA, going so far to ask the defendant to “explain” the facts of his 2008 conviction, with the court instructing the defendant to do so. In one instance, after asking the defendant to confirm that he was charged in the instant case with burglary in the second degree, the prosecutor remarked, in effect, that the instant crime was “the same type of DNA hit that happened back in 2008.” …

The defendant here was denied … [the right to make an informed choice whether to testify] when, after making what he believed to be an informed judgment and taking the witness stand, the Supreme Court implicitly changed the ruling upon which he relied by allowing the prosecutor to continue her course of prejudicial questioning despite objections from defense counsel. People v Walters, 2019 NY Slip Op 03632, Second Dept 5-8-19

 

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