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POLICE ENTERED HOME ILLEGALLY AND OBTAINED CONSENT TO SEARCH BY MISLEADING THE OCCUPANT, MOTION TO SUPPRESS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department, affirming Supreme Court’s suppression of a weapon found in a home, determined the police illegally entered the home and gained consent to search by misleading the woman in the home:

Asked by defense counsel why he entered the home, the officer testified, “An individual who’s known to carry guns entered that house running into that house actually, coming out acting nervous, there’s a baby crying in the house, who is taking care of the baby?” …

… [T]he People correctly concede that the officer entered the home illegally. An illegal entry by the police requires the suppression of the fruits of an ensuing search notwithstanding a voluntary consent, unless the consent attenuates the taint of the illegal entry … . In determining whether the illegal entry is so attenuated, a court is required to consider a variety of factors, including: (1) the temporal proximity of the consent to the illegal entry; (2) whether there were intervening circumstances; (3) whether the purpose underlying the illegal entry was to obtain the consent or the fruits of the search; (4) whether the consent was volunteered or requested; (5) whether the person who gave consent was aware that he or she could refuse consent; and, most importantly, (6) the purpose and flagrancy of the misconduct … .

… The purpose of the illegal entry was to recover a gun that the officer presumed was hidden inside. Any consent obtained thereafter was not volunteered. It was requested, and the woman was not advised that she could refuse consent. … Most importantly, the officer engaged in flagrant misconduct. Without having witnessed any illegality, the officer entered a private residence without permission, after midnight, while a woman in that residence was trying to feed her newborn child, and coerced her into consenting to a search of her home. People v Sweat, 2019 NY Slip Op 02240, Fourth Dept 3-22-19

 

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THE PEOPLE DID NOT PRESENT EXTRINSIC EVIDENCE AT THE DARDEN HEARING THAT THE INFORMANT EXISTED, THEREFORE THE SUPPRESSION MOTION WAS GRANTED AND THE INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department determined the evidence submitted by the People at the Darden hearing did not establish the existence of an informant with extrinsic evidence. Therefore the motion to suppress was granted and the indictment dismissed. The People presented only a death certificate purporting to demonstrate the informant was dead. No extrinsic evidence of the existence of the informant was presented:

The People must produce a confidential informant for an ex parte hearing upon defendant’s request where, as here, they rely on the statements of the confidential informant to establish probable cause (… People v Darden, 34 NY2d 177, 181 [1974] … ). …

There are, however, exceptions to the requirement that the People produce a confidential informant for a Darden hearing. If the People succeed in making a threshold showing that the informant “is unavailable and cannot be produced through the exercise of due diligence” … , they are permitted instead to establish the existence of the informant by extrinsic evidence … .

Even assuming, arguendo, that the People succeeded here in making such a threshold showing, we conclude that they nevertheless failed to establish the existence of the informant by extrinsic evidence … . The evidence establishes only that a deposition was executed in the name of the alleged confidential informant, that the police obtained a search warrant using the deposition, and that a death certificate was later issued for a person having the same name as the confidential informant. There is no evidence that the alleged informant actually made the statements attributed to her … . The People could have met their burden by offering the testimony of a police witness, which is evidence that is explicitly contemplated in Darden. Yet, they did not. Without it, there is nothing to refute the possibility that the police fabricated the statements in the informant’s purported deposition in order to conceal the fact that information critical to the probable cause inquiry was instead obtained through illegal police action. People v Givans, 2019 NY Slip Op 02220, Fourth Dept 3-22-19

 

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HEARING NECESSARY ON THAT ASPECT OF DEFENDANT’S MOTION TO VACATE THE JUDGMENT OF CONVICTION WHICH ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT ALLEGED DEFENSE COUNSEL TOLD THE JURY DEFENDANT WOULD TESTIFY WITHOUT FIRST CONSULTING WITH DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant was entitled to a hearing on that aspect of his motion to vacate the judgment of conviction on ineffective assistance of counsel grounds. Defendant alleged defense counsel told the jury that defendant would testify without first consulting with defendant:

We … conclude … that defendant is entitled to a hearing with respect to whether counsel was ineffective in telling the jury that defendant would testify at trial. In support of his motion, defendant submitted his own affidavit stating that his trial counsel never discussed with him whether testifying would be a good or bad idea, and that he never told counsel that he would testify at trial, and that trial counsel nevertheless told the jury that defendant would testify. Defendant’s account is supported by the affirmation of defendant’s appellate counsel, who stated that trial counsel admitted that defendant did not tell him before trial that he would testify. Thus, defendant’s allegations are potentially supported by other evidence, and “it cannot be said that there is no reasonable possibility that [they are] true” … . We therefore conclude that a hearing is required to afford defendant an opportunity to prove that trial counsel did not discuss with him whether he would testify before informing the jury that defendant would do so, and that there was no strategic or tactical explanation for telling the jury that defendant would testify … . People v Pendergraph, 2019 NY Slip Op 02212, Fourth Dept 3-22-19

 

TRAFFIC STOP WAS SUPPORTED BY REASONABLE SUSPICION DESPITE THE DMV COMPUTER IMPOUNDMENT RECORD’S CAUTIONARY STATEMENT THAT THE VEHICLE SHOULD NOT BE CONSIDERED STOLEN (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the traffic stop was supported by reasonable suspicion even though the DMV impoundment record indicated the vehicle was not stolen:

Here, a New York State Trooper properly stopped the vehicle defendant was driving based on his check of Department of Motor Vehicles (DMV) computer records for the vehicle’s license plate number, which revealed that the car had been impounded and thus should have been located in an impound lot … . …

Our dissenting colleagues conclude that the Trooper did not have reasonable suspicion to stop defendant’s vehicle because the Trooper disregarded cautionary language in the DMV impoundment record stating that it “should not be treated as a stolen vehicle hit[, and] [n]o further action should be taken based solely upon this impounded response.” We conclude, however, that the Trooper’s testimony that the cautionary language was “generic,” inasmuch as it even “comes up with stolen vehicles,” and that, based on his experience, he interpreted the impoundment record as requiring him to conduct a further investigation because the vehicle “should not be out on the road,” establishes that the stop was not unreasonable. Rather, we conclude that the impoundment record, coupled with the Trooper’s explanation of its import, provided reasonable suspicion to stop the vehicle. In disregarding the Trooper’s explanation that the cautionary language was “generic,” the dissent would obligate us to find unreasonable any stops where that same message appears, irrespective of the facts surrounding the stop. We reject such a categorical determination. People v Hinshaw, 2019 NY Slip Op 02252, Fourth Dept 3-22-19

 

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PERIOD OF POSTRELEASE SUPERVISION CAN NOT BE IMPOSED ON AN INDETERMINATE SENTENCE, ILLEGAL SENTENCE CONSIDERED ON APPEAL EVEN THOUGH THE ISSUE WAS NOT RAISED BY EITHER PARTY (FOURTH DEPT).

The Fourth Department determined the period of postrelease supervision was not authorized for the indeterminate sentence imposed on the tampering with physical evidence conviction:

Supreme Court imposed a period of postrelease supervision in connection with defendant’s conviction of tampering with physical evidence. That was error inasmuch as a period of postrelease supervision is not authorized in connection with an indeterminate sentence (see Penal Law § 70.45 [1] … ). Although the issue is not raised by either party, we cannot allow an illegal sentence to stand … . We therefore modify the judgment by vacating that period of postrelease supervision … . People v Harvey, 2019 NY Slip Op 02250, Fourth Dept 3-22-19

 

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SURCHARGE, DNA DATABANK FEE, CRIME VICTIM ASSISTANCE FEE SHOULD NOT HAVE BEEN ASSESSED AGAINST A JUVENILE OFFENDER (FOURTH DEPT).

The Fourth Department, over a two-justice concurrence, determined that defendant juvenile offender waived his right to appeal but found that the surcharge, DNA databank fee and crime victim assistance fee should not have been imposed on a juvenile offender. The concurrence argued that the waiver of appeal precluded the challenge to the imposed fees, but the People waived defendant’s appeal-waiver on that narrow issue:

As defendant contends and the People correctly concede, we conclude that the surcharge, DNA databank fee, and crime victim assistance fee imposed by County Court must be vacated because defendant is a juvenile offender … . People v Works, 2019 NY Slip Op 02247, Fourth Dept 3-22-19

 

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DEFENDANT SHOULD NOT HAVE BEEN ASSESSED 20 POINTS FOR A CONTINUING COURSE OF SEXUAL MISCONDUCT, PROOF OF A SECOND INSTANCE OF SEXUAL MISCONDUCT WAS INSUFFICIENT, AN ALLEGATION IN AN INDICTMENT IS NOT, BY ITSELF, EVIDENCE THE INCIDENT OCCURRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that defendant should not have been assessed 20 points for a continuing course of sexual misconduct, noting that a reference in an indictment is not sufficient proof:

Defendant pleaded guilty to one count of having sexual intercourse with the victim and claimed that he only had sex with the victim once. The People presented a sworn statement given to the police by the victim’s mother in which she recounts that, when she confronted the victim concerning her relationship with defendant, the victim told her that they “had sex two times.” Even assuming that this statement constitutes reliable hearsay … there is no indication by the victim as to when the acts of sexual contact occurred. Although the case summary states that the presentence investigation report reflects that acts of sexual contact occurred in May 2013 and September 2013, the only reference to a September 2013 act in that report is when it lists the charges contained in the indictment. Notably, “the fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). Inasmuch as there is no evidence in the record regarding when the second act of sexual contact occurred, we cannot say that there is clear and convincing evidence that two sexual acts occurred that were separated by at least 24 hours … . People v Hinson, 2019 NY Slip Op 02184, Third Dept 3-21-18

 

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CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, ERROR HARMLESS HOWEVER (FIRST DEPT).

Although the error was deemed harmless, the First Department determined the cross-racial identification jury instruction should have been given:

The trial court denied defendant’s request for a charge on cross-racial identification. Since then, the Court of Appeals decided People v Boone, which held that “when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification” and the trial court must give the charge if a party requests it (30 NY3d 521, 526 [2017]). Since identification was an issue in this case and the victim and defendant were of different races, the motion court should have granted the request for the charge on cross-racial identification. However, we find the error harmless given that the video supports the victim’s testimony about the incident and his familiarity with defendant. Further, the victim told police that the robber had an MTA connection, and defendant was arrested wearing an MTA jacket. The identification testimony was unusually strong and the evidence of defendant’s guilt was overwhelming … . Also, there is no significant probability that defendant would have been acquitted but for this charge error … . People v Patterson, 2019 NY Slip Op 02154, First Dept 3-21-19

 

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MOTION TO SUPPRESS SHOULD NOT HAVE BEEN DENIED ON THE GROUND THAT DEFENDANT LACKED STANDING, OTHER GROUNDS FOR SUPPRESSION NOT RAISED BELOW COULD NOT BE CONSIDERED ON APPEAL, DEFENSE COUNSEL SHOULD NOT HAVE BEEN PRECLUDED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT A CIVIL SUIT AGAINST HIM (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defendant’s motion to suppress the weapon he dropped should not have been denied on the ground defendant lacked standing and defense counsel should not have been precluded from cross-examining a police officer about allegations made in a federal civil suit against him.  The First Department noted it could not consider alternative grounds for suppression not raised below:

Two officers testified at the hearing to the effect that the pistol was recovered immediately after it fell from defendant’s person. Since this Court lacks jurisdiction to affirm the denial of defendant’s motion to suppress the pistol on the alternative ground that the police had reasonable suspicion to stop and frisk him, a ground upon which the hearing court did not rule, we “reverse the denial of suppression and remit the case to Supreme Court for further proceedings”… .

Defendant is also entitled to a new trial, because the trial court improperly precluded his counsel from cross-examining the only police officer who allegedly saw the pistol falling from his person about allegations raised in a federal civil action against the officer, which had settled. Counsel had a good faith basis for seeking to impeach the officer’s credibility by asking him about allegations that he and other officers approached and assaulted the plaintiff in that case without any basis for suspecting him of posing a danger and filed baseless criminal charges against him … . Although trial courts “retain broad discretion” over the admission of prior bad acts allegedly committed by a police witness or other witness … , the court improvidently exercised its discretion by entirely precluding any cross-examination about the allegations at issue here without any valid … . People v Holmes, 2019 NY Slip Op 02033, First Dept 3-19-19

 

INABILITY TO IMPOSE THE PROMISED SENTENCE REQUIRED THAT DEFENDANT’S GUILTY PLEA BE VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his plea because the promised sentence could not be imposed should have been granted:

… [D]efendant is entitled to vacatur of the plea because his negotiated plea included a promise of shock incarceration, and that promise cannot be honored because shock incarceration is only available for persons convicted of controlled substance or marijuana offenses … . Since the guilty plea was induced by an unfulfilled promise, we vacate the plea in its entirety. The SCI was part and parcel of the negotiated plea. Therefore, we restore defendant to his preplea status and reinstate the indictment … . People v Golden, 2019 NY Slip Op 02027, First Dept 3-19-19

 

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